August 2014 Archives

Off-topic but interesting, Fergus Bordewich in the WSJ takes us on a historical trip down the "what if" road.
Prof. Sara Sun Beale of Duke Law School is, in my view, a more balanced intellect than one usually encounters in academia.  Her recent article seems to assume that having more information makes it more likely that one will oppose capital punishment  --  an assumption with which I disagree.  But her article has the virtue of laying bare one of the key facts about the abolitionist movement  -- that it lacks popular support even where it succeeds, and essentially is led by those who look down at "trailer park trash" and "women with big hair."  

The abstract of Prof. Beale's piece, found at SSRN, explains:

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. Other nations have abolished capital punishment despite widespread public support -- in many cases, support of more than 70 percent of the public at the time of abolition. In the United States, however, after the Supreme Court imposed a de facto moratorium on capital punishment in the early 1970s, strong public support led to its reintroduction in two-thirds of the states.

This paper explores the relationship between public opinion and the abolition or retention of the death penalty, comparing the U.S. experience to that of other nations (with a particular focus on Germany, France, the United Kingdom, and Canada). Although the experience of each country includes distinctive elements, several common themes emerge. In each country, political elites led the abolition movement. The structure of the electoral process and the parliamentary party system, moreover, allowed legislators and other public officials a degree of insulation from popular opinion. The elites differed from their electorates in education, experience, and knowledge of the issue. Because of these differences, support for capital punishment was much lower among these elites than among the general public. In abolishing capital punishment, the elites acted in accordance with their own views, rather than those of the median voter or the general public. Some scholars have characterized this type of political behavior as the "elite leadership hypothesis." Additionally, international agreements and norms played a significant role in Europe, making abolition difficult to reverse once enacted and helping to persuade other nations to abolish capital punishment despite the existence of popular support. Finally, abolition (whether de jure or de facto) has had a tendency over time to reduce public support for capital punishment, thus diminishing popular pressure to reverse course


What Ferguson Is "About"

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Just now I read an opinion piece in the Washington Post titled, "Ferguson Isn't About Black Rage Against Cops; It's White Rage Against Progress."  The gist of the column, written by an associate professor in the African American studies and history department at Emory University, is that what's sparking the controversy isn't the shooting itself, nor the looting and violence thereafter, nor even any national concern about where we are, after all these years, with black crime and white police.

Nope, it's about how Ferguson "shows us" that white people still want to subjugate blacks a la' slavery (or as close as whites can get to slavery).  They want to do this by such vicious means as efforts "to dilute African American voting strength [through, e.g., voter ID laws] or seek to slash the government payrolls that have long served as sources of black employment."

The article is, in its way, just the most recent in a long line of furious, Sharptonesque attacks on whites, not dissimilar to the one I noted before arguing that what Ferguson is "about" is that whites had better cough up reparations.  But there's a more fundamental point about the vocabulary in which this entire discussion is being conducted.

Ferguson is the name of a town in Missouri.  It isn't "about" anything until we know what happened.  If you're reading something purporting to tell you what Ferguson is "about," or "the lessons of Ferguson," or "how to avoid the next Ferguson," put it down.  It's just using the word "Ferguson" to appropriate your attention to an agenda that's been around for years.

Those actually interested in knowing what Ferguson is "about" are still waiting. Waiting is annoying, for sure, but old-fashioned qualities like patience, maturity, authentic curiosity and fair play demand it.  If Ferguson turns out to be about a cop who shot a muscular, huge, enraged 18 year-old charging at him from a few seconds away, then it's "about" one thing.  If it shows a cop who shoot a huge, muscular 18 year-old who wanted nothing but to peacefully surrender and posed no realistic threat, then it's "about" something else.  In neither event is it necessarily about an issue with national resonance, although it might be, depending  --  again  --  on those pesky specifics.

For the moment, we are left to regret that, even as we're still in the dark about the most important facts,  the now standard-issue charge "KKK" gets hissed at those, white or black, who want to see that legitimate voters are the ones voting, and take at least a stab at paring back the government's sinkhole debt. If liberals are ever again able to make their arguments without this kind of opportunistic, race-baiting calumny, please, someone, jab me in the ribs.
Five years ago, California Governor Arnold Schwarzenegger nominated former state Senator Charles Poochigian to the state Court of Appeal.  He was evaluated by the State Bar Commission on Judicial Nominees Evaluation and given the lowest rating, Not Qualified.  This was not because of his personal characteristics.  On the contrary, reported Kenneth Ofgang in the Metropolitan News-Enterprise at the time,

JNE Commission Chair Jonathan Wolf of San Francisco wrote to the chief justice that the nominee "is intelligent, diligent, and articulate...is an independent thinker, courteous, and even tempered...works well under pressure and demonstrates courage, compassion, and common sense...is a hardworker...and...is committed to public service."
So what was the problem?  There was one and only one.

But Poochigian's legal background does not qualify him for the appellate bench, Wolf said, explaining:

"He had not practiced law for approximately 21 years and had not litigated a case in approximately the same amount of time. Moreover, he has no jury trials and no criminal law experience."

The commission did consider Poochigian's experience in the Legislature, including his work on criminal law issues as vice chair of the Senate Public Safety Committee, but did not find this sufficient, Wolf related.
Why bring this up five years later?  Governor Jerry Brown recently nominated Stanford Law Professor Mariano-Florentino Cuéllar to the California Supreme Court.  His CV, while otherwise impressive, is devoid of practical legal experience.  Does the JNE Commission have a problem with that?  Oh, heavens to Betsy, no.  "A state bar evaluating commission gave Cuellar ... its highest rating: exceptionally well qualified," reports Maura Dolan in the LA Times.

Does an otherwise well qualified nominee with little, no, or stale practical legal experience deserve the highest rating or the lowest?  The answer, if the rating is done by the California State Bar's commission, depends entirely on political alignment.

Claims that removing judicial nomination functions from elected officials and turning them over to bar committees will remove politics from the process are complete hokum.
Remember Clayton Lockett, the Oklahoma murderer who supposed died of a heart attack rather than the lethal injection?  Well, never mind.  An independent autopsy found he did indeed die of the lethal injection drugs, Tim Talley of AP reports.

An autopsy on an Oklahoma inmate who died after his troubled execution was halted concluded that he was killed by the lethal drugs, but it doesn't explain why he writhed, moaned and clenched his teeth before he was pronounced dead about 43 minutes after the process began.
This execution still counts as "botched," in my view, but it is the only one in years that does.  We can't say with confidence that he was "under" from the beginning of the procedure, which we can with the others.
Tony Mauro has this article at National Law Journal (registration required) on the reorganization of the Supreme Court Clerk's office, previously noted here.

Jordan "Danny" Bickell will serve in the new position of deputy clerk for practice and procedure, which will carry out some of the functions of the chief deputy. Those includes "the preparation of weekly conference lists, taking action on extensions of time to respond to petitions for writs of certiorari, and service as the primary point of contact for members of the Court's bar with respect to questions of practice and procedure," according to the announcement.

Bickell's new title also means a temporary vacancy in the position of staff attorney for emergency applications--known informally as the "death clerk," the court's liaison with state officials and defense lawyers in the final hours before scheduled executions. Bickell held that position and will continue to perform those duties until the vacancy is filled.
Let's hope they fill the vacancy soon.  That job is too important and too difficult to be an "additional duty" rather than the person's main job.

News Scan

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Convicted Killer to be Re-Sentenced: A New Hampshire man convicted and sentenced to life without parole (LWOP) for murdering two college professors when he was 17 years old, is scheduled to be re-sentenced after the state's Supreme Court ruled in favor of applying a recent U.S. Supreme Court decision retroactively.  Peter Schworm of The Boston Globe reports that the New Hampshire high court unanimously agreed to apply the Supreme Court's 2012 Miller decision retroactively to four inmates who are currently serving life sentences for crimes they committed as juveniles.  Each of the men will have a re-sentencing hearing, however, judges have the right to re-sentence them to LWOP if they believe it is warranted.

Cop Killer Sentenced to Death: An Arizona jury has sentenced convicted cop killer Bryan Hulsey to death.  The Associated Press reports that Hulsey killed one officer and wounded another during a routine traffic stop in 2007.  Under Arizona law, Hulsey's death sentence will be automatically appealed to the state's high court.

Convicted Sex Offender Caught at U.S. Border:   An illegal immigrant convicted in Los Angeles County on several counts of lewd acts with a child was caught earlier this week trying to enter the U.S. illegally through the country's southwest border.  Michelle Moons of Breitbart reports that 43-year-old Osmar Acevedo was convicted in 2008 of five counts of lewd or lascivious acts with a child and sentenced to three years behind bars.  It is unknown whether or not he served his entire sentence or was released early.  It is also unclear when Acevedo left the U.S, but court documents show he had been previously deported in 1996. 

The Victims of "Smart Sentencing"

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Over most of the past decade liberal groups, which originally opposed and have for years sought to eliminate the so-called  "harsh" habitual criminal sentencing policies adopted in the 80s and 90s, have launched collaborative efforts with libertarians and some Republicans to encourage alternative sentencing.  "Right on Crime","Smart on Crime" and "Smart Sentencing" advocates have been successful at changing policies in many parts of the country to reduce sentences for criminals categorized as non-violent, and placing them instead in community programs to help them become law-abiding members of society, with the promise of saving millions in state and federal prison costs.  At a time when crime rates are relatively low, and our European betters and Hollywood movie stars are constantly scolding America as the incarceration nation, the allure of an America where bright, dedicated government employees guide minor offenders off the criminal path is difficult for many to resist. 

Police Prudence or Hecklers' Veto?

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One of the tougher issues in First Amendment law is deciding when protected speech turns into unprotected incitement.  Police are often called upon to make that judgment.  In this case, they found incitement, moved the protesters out, and threatened them with arrest for disorderly conduct.  (No charges were actually brought in court, however).

A Sixth Circuit panel found that the district court got it right when it held for the police. On the circumstances of this case, I think the cops got it wrong, for the reasons explained by dissenting Judge Eric Clay (appointed by Bill Clinton).

To allow a menacing mob to trump peaceful (although very annoying) protesters' First Amendment rights is to allow the "heckler's veto," and that in turn will lead us to a place a free country should never go.

Canada's Fairness for Victims Act

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Our northern neighbor's House of Commons commendably passed the Fairness for Victims Act, which among other things allows the parole board to set reconsideration intervals up to five years rather than the current two.  When a rapist or murderer is eligible for parole and the victim or victim's family is opposed, they must go to the hearing and relive the horror.  They ought not have to do that more often than necessary.

In an amazing screw-up, though, the wrong version of the bill was sent to the Senate and referred to committee there, Sean Fine reports in the Globe and Mail.

Summer SCOTUS Orders

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Today the U.S. Supreme Court issued the last of its three summer orders lists.  As expected, it was routine stuff.

The "long conference," at which the Court considers the big stack of petitions that have built up over the summer, is set for Monday, September 29.  We can expect an orders list with the petitions granted the next day.  A long orders list of petitions denied will follow on the official opening day of the term, the First Monday in October, which is the 6th.

The Cert Pool has the list.  It's 1566 cases.  They aren't kidding about "long."

News Scan

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Repeat Offender Named as Homicide Suspect: A Northern California man is behind bars on suspicion of murder after leading police on a high-speed chase in a stolen car.  Jess Sullivan of the Daily Republic reports that 20-year-old Samuel Nodine has a lengthy criminal past that includes several probation violations and assault charges.  Nodine is believed to be the person responsible for stabbing to death a former gang associate on the night of July 31, just two months after a judge put him on probation for the third time in less than two years.

MO High Court Upholds Death Sentence: The Missouri Supreme Court has upheld the death sentence for a man convicted of murdering a 9-year-old girl.  Kyle Troutman of the Cassville Democrat reports that 39-year-old Christopher Collings appealed his  sentence claiming that he had confessed to a police officer he knew, and that photographs of the victim shown at trial were not relevant to the case.  Collings kidnapped the young girl and brought her back to his home where he raped and murdered her before dumping her body in a cave.

Gun Ban for Those Convicted of Domestic Violence: A California appeals court has ruled that anyone convicted of domestic violence will be permanently barred from possessing a firearm even if no physical injury was inflicted.  Bob Egelko of the San Francisco Chronicle reports that the decision made by the court applies a U.S. Supreme Court ruling in United States v. Castleman which clarified a  law extending the federal ban on firearm ownership to those convicted of misdemeanor domestic violence.  Prior to 1996, California law only restricted firearms for those convicted of felony domestic violence.
Phillip Reese has this post at the Sacramento Bee, noting a disturbingly sharp disparity in the arrest rate for one group in California, a rate nearly triple the state average.

News Scan

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Habitual Felon to be Charged with Multiple Murders: A California man with a lengthy criminal past has been arrested and is expected to be charged later today with several counts of murder.  The Associated Press reports that 34-year-old Alexander Hernandez is believed to be responsible for killing four people and wounding several others over five days across Los Angeles County.  Hernandez has already been charged with one count of capital murder, two counts of attempted murder, three counts of animal cruelty, and is expected to be charged with three more counts of first-degree murder.  If found guilty, Hernandez faces a possible death sentence.  

Convicted Murderer Kills Again: Authorities in Missouri say that an inmate has died from injuries he sustained at the hands of his cellmate, a convicted murderer.  The Associated Press reports that 35-year-old Mark Melton was assaulted in his cell earlier this month and eventually died from his injuries last weekend.  Authorities believe his cellmate, who is serving a sentence for second-degree murder was responsible for his death and have classified the incident as a homicide.

Oregon Killer Awaits Parole Decision: An Oregon man convicted of raping and murdering his 16-year-old classmate more than two decades ago is awaiting a decision from the state's parole board on whether or not he will be released from custody.  KOIN 6 News reports that Conrad Engweiler was 15 at the time of the killing, and is one of five Oregon men who committed aggravated murder as juveniles before mandatory sentencing guidelines had been established.  Engweiler was sentenced in 1991 to life with a minimum of 30 years.  The parole board is expected to make a decision on his release within weeks.

Fools, Damned Fools, and Clients

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Michael Barone writes in the Washington Examiner:

"About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop." So supposedly said Elihu Root, New York lawyer and secretary of war and of state, and U.S. senator from 1909 to 1915.

Today it seems that many liberal "would-be clients" are in desperate need of what Root called "a decent lawyer."

Take Texans for Public Justice, the so-called public interest group that has been pushing for the indictment of Gov. Rick Perry by a grand jury at the urging of special prosecutor Michael McCrum.

The basis for the indictment is, in the words of liberal New York Magazine writer Jonathan Chait, "unbelievably ridiculous."

New Chief for ICE?

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Devlin Barrett reports for the WSJ that Sarah Saldaña, US Attorney for the Northern District of Texas, "is the leading candidate to run the Immigration and Customs Enforcement agency, according to people familiar with the discussions."

ICE is one of the agencies created in the post-9/11 reshuffle of homeland security organization.  It has many of the functions previously performed by the old Immigration and Naturalization Service.

And the story has this nugget:

Ms. Saldaña got her current job after an unusual political standoff in which her nomination to become U.S. attorney was backed by Sen. John Cornyn (R., Texas) and opposed by some Democrats in the Texas congressional delegation.

Arizona Primary

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Arizona had its primary election yesterday.  Mark Brnovich won the Republican nomination for Attorney General, defeating incumbent Tom Horne, Alia Beard Rau reports for the Arizona Republic.

I lauded Horne on this blog for moving forward with a "fast track" application for Arizona's capital cases in federal habeas corpus (here and here), but unfortunately the follow-through has been lacking.  I expect Brnovich to take up the fight if he wins the general election.  (He and I serve together on the Federalist Society's Criminal Law Practice Group Executive Committee, BTW.)

The general election is not a foregone conclusion, though.  The race was close last time, the Democratic nominee had no primary opponent, and she has a formidable warchest.

In the Governor's race Doug Doucey has taken the Republican nomination.  I haven't followed that race, but Doucey has endorsements from people whose judgment I respect.  His campaign website is nearly devoid of useful information on his positions, as most campaign websites are these days.
UC Irvine Law Dean Erwin Chemerinksy has this op-ed in the NYT, titled "How the Supreme Court Protects Bad Cops." 

Chemerinsky is upset about the doctrine of qualified immunity in civil suits against police officers for excessive force.  Okay.  Although I generally support it, at times I have had some qualms about some aspects and applications of that doctrine myself.  But just looks at what he says to support this argument.

Arbitrariness, Expense and Delay

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Three of  the major emerging themes in the anti-death penalty movement are arbitrariness, expense and delay.  The first and third of these are, as I understand it, the principal arguments in the district court's opinion in Jones v. Chappell, about which Kent has written extensively.

I am not in this post going to attempt any extended analysis of these themes; instead, I'm going to do the really, really short take on the first*  --  the claim (see, e.g., here) that the death penalty is carried out so infrequently that in has become arbitrary in the constitutional or morally disabling sense.  

*In later posts I'll take on the other two.

Jones v. Chappell Appeal

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Last week I noted the appeal in Jones v. Chappell, the case holding that because of the delays in carrying out justice in the worst murder cases in California we must now forgo that justice altogether. The docket number in the Ninth Circuit is 14-56373.  The appellant's opening brief is due December 1.  The answer brief is due December 29.  The reply brief is due January 12.  These are all Mondays.

Some people have asked me about a stay.  There is nothing to stay.  There is no injunction affecting other cases.  There is no final judgment in this case.  This is just a ruling on one claim in one case.  To the extent the judge's order purports to vacate Jones's death sentence directly, it is void.  A federal district court judge has no authority to vacate a judgment in a state criminal case as such.  He can only issue a conditional release order, saying that the warden must release a person unless he is retried or resentenced, and the judge in this case has not done that yet.

BTW, Ninth Circuit case 14-56302 is the Soos/Justice appeal noted here, and that case will surely go away shortly.  Update: Today Mr. Soos and Dr. Justice filed their response to the Court of Appeals' order to explain what the heck they are doing appealing a case to which they are not parties.

News Scan

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CA Man Attacks Aunt Hours After Jail Release: A Fresno, CA man has been arrested and is facing charges of assault with a deadly weapon after authorities say he attacked his aunt with a hammer just hours after being released from county jail.  ABC 30 Action News reports that Anthony Palomino had been arrested last week after breaking into cars at his relative's funeral, but was released early from the Fresno County Jail due to overcrowding.  Authorities say after he was released, Palomino attacked his aunt with a hammer leaving her with a black eye, broken cheek bone, and 19 staples in her head.  He is being held in county jail on $25,000 bail.

Killers Plead Guilty to Avoid Death Penalty: A Pennsylvania couple has agreed to plead guilty to second-degree murder in the alleged thrill-killing of a man last year in order to avoid a possible death sentence.  Nikki Krize of WNEP News reports that Miranda and Elytte Barbour, also known as the 'Craigslist killers', met their victim online and lured him into meeting them because they wanted to murder someone together.  The couple has also claimed responsibility in 20 other murders in different parts of the U.S., however, authorities have yet to confirm them.  The couple will be sentenced next month, likely to life in prison without the possibility of parole.

California's Firearm Wait Period Deemed Unconstitutional: A federal judge has ruled in favor of overturning part of a California law that mandated a 10-day waiting period for gun buyers, calling the legislation a violation of the Second Amendment.  KCRA Sacramento reports that the mandatory waiting period will no longer apply to individuals who already own firearms, however, first time gun buyers will still be required to undergo a background check and wait the mandatory 10 days.  The state attorney general has yet to announce whether or not she will appeal the ruling.

Evil, Part II

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Kent notes that WaPo columnist Richard Cohen has discovered the existence of evil. As Kent observes, this is progress.  Three years ago, Mr. Cohen took a more relativist approach.  The subject then was nothing like the grotesque beheading of a hostage (it was, instead, the behavior of the very unfortunately named Congressman Weiner), but relativism quickly balloons once it escapes, so I went after Mr. Cohen with both barrels in my comment to Kent's post.

Still, progress is progress and clarity is clarity, and I'm happy to see them.  Perhaps, in a different life, I'll see some on the editorial page of the New York Times.

Evil

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After 9/11, it briefly became acceptable across the ideological spectrum to speak of "evil."  Usually, the pseudosophisticates who dominate academia, journalism, and the political left consider it the mark of a rube to speak in terms of good and evil.  Being "advanced" requires moral relativism which requires understanding and compassion for people who commit horrendous crimes.  Murder and rape are "antisocial behavior," not evil acts.

Richard Cohen is a columnist for the WaPo who leans left but has more sense than most of his ilk.  In this column, he dares to use the e-word:
The sitting Governor of Colorado, John Hickenlooper, is in a heated re-election campaign.  One of the issues is his handling of the case of convicted multiple killer John Dunlap.  

Dunlap gunned down four people in a Chuck E. Cheese in Aurora in 1993.  He was sentenced to death, and the sentence has been affirmed after the usual multiple layers of review.  Nonetheless, and despite the fact that Hickenlooper originally ran for office as a death penalty supporter, he granted Dunlop a "temporary reprieve" earlier this year, saying that Dunlop would not be executed while he was in office.

In a TV interview with CNN, now reported by the Denver Post, Hickenlooper said that, should his pro-death penalty opponent, Rep. Bob Beauprez, win, he would consider granting "full clemency" to Dunlop.

It's hard to know where to begin with this story.


Pretrial Habeas Corpus and Gov. Perry

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Once upon a time, the use of habeas corpus in criminal cases was almost entirely pretrial.  A person jailed pending trial for alleged conduct that he contended was not a crime could get that issue reviewed via habeas corpus.  The most famous American case involved two men accused in the Aaron Burr conspiracy.  See Ex parte Bollman and Swartwout, 8 U.S. 75 (1807).  The writ could be used post-trial to attack the jurisdiction of a court of limited jurisdiction, such as a court-martial of a defendant who claimed to be a civilian, but collateral attack via habeas corpus on a conviction by a court of general jurisdiction was simply not available.  It was over 40 years after the formation of the federal courts before anyone tried, and the attempt was swiftly shot down in Ex parte Watkins, 28 U.S. 193 (1830).

Today the situation is very much the opposite.  We don't see a lot of pretrial habeas corpus these days, but Texas Governor Rick Perry is doing it old school.  Eugene Volokh has this post with a link to the application. Perry is in "custody," a jurisdictional requirement for habeas corpus, because he is out on bond.

Taranto on Obama's Ferguson Statement

Catching up on some stuff that happened while I was out of town, I found an interesting example of the political cross-currents in the Ferguson, Missouri matter.  James Taranto of the WSJ is not a big fan of President Obama, to put it mildly.  He does, though, give the President high marks for his statement last week in this column.

Multiple investigations are under way into the circumstances under which Michael Brown was killed. They must proceed deliberately, in accordance with the rule of law. "I have to be very careful about not prejudging these events before investigations are completed because, although these are issues of local jurisdiction, the [Department of Justice] works for me and when they're conducting an investigation I've got to make sure that I don't look like I'm putting my thumb on the scales one way or the other," the president said.

People in positions of authority have an obligation to conduct themselves with reason and restraint. Whether or not the Ferguson police have lived up to that duty, the president, in his public statements on the crisis, has.

News Scan

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Chicago Experiencing Crime Drop: Police in Chicago, Illinois have announced that the city has experienced a sharp decrease in crime as more residents have begun arming themselves after the state started granting concealed carry permits earlier this year.  Kelly Riddell of The Washington Times reports that the city has seen a decrease in burglaries and robberies, and Chicago's homicide rate was at a 56-year low.  Richard Pearson, executive director of the Illinois State Rifle Association, believes that the decreases are directly linked to the state allowing citizens to carry concealed weapons. 

Murderer Avoids Death Penalty: A Florida man will spend the rest of his life behind bars after being charged in multiple killings.  Larry Hannan of the Florida Times-Union reports that 29-year-old DeShawn Green was able to avoid a death sentence for the third time last week after prosecutors elected to drop first-degree murder charges out of fear that a possible acquittal could jeopardize his prior two murder convictions.  Green was originally sentenced to death for a 2009 murder but the judge overruled the jury and gave him life without parole instead.

TX National Guard to Begin Patrolling Border: Roughly 1,000 Texas National Guard troops have been deployed to the Mexican border in an effort to combat escalating crime rates in the area.  Reuters reports that Texas Governor Rick Perry advised the troops that they were being deployed to the border region to deter criminal activity. Perry estimates that deploying the troops will cost the state at least $12 million a month. Texas border cities have been overwhelmed with immigrants flooding the state's borders since late 2013, causing escalating crime.

The Only Thing That Actually Counts

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The shooting in Ferguson, Mo. has been the launching pad for all manner of expounding about pre-existing agendas.  Libertarians have used it to urge the disarming of the police (called "demilitarization" for their present purposes); liberals have used it to push for legalizing dope; anti-white racists have used it to demand reparations ("reparations" being the word that radicals of one race use to promote appropriating money they did nothing to earn from people of a different race who did nothing to bring about the practices they condemn).

All this is the expected, if not exactly wholesome, reaction of a society that encourages free speech.  But it deflects  --  and is largely designed to deflect  -- from the one thing that actually counts.

There's Only So Much You Can Do

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I've done my share of criticizing the defense bar.  As I see the world, the problem is (1) the client is almost always factually guilty, therefore (2) the only way to an acquittal on the merits is through some sort of sleight-of-hand, but (3) doing sleight-of-hand day after day doesn't seem to be a real wholesome way to conduct one's career.

That said, most defense lawyers I know are good human beings, and sometimes they really are the heroes of civil liberties they claim.  Even when doing the routine case, however, the heart of the problem isn't the lawyer.  It's the client.

I mean, what exactly are you supposed to do when the fellow who shows up in your office is this guy?

Terrorist Horror, Then Golf

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The title of this entry is taken from yesterday's headline in that right wing rag, the New York Times.  It refers, of course, to President Obama's ostensibly somber and angry news conference about the videotaped beheading of an American citizen by Islamic butchers, followed forthwith by a few rounds on the links.

As the Times points out, the contrast was a bit much even for the President's usual allies:

Jones v. Chappell Appealed

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The California Attorney General today filed a notice of appeal in the Jones v. Chappell case.

Earlier posts on this case:

The Lackey Claim, Again

Summing up the Jones Death Penalty Case

Why Jones v. Chappell is Wrong, Part 2

Why Jones v. Chappell is Wrong, Part 3 -- Teague v. Lane

Time to Appeal Jones v. Chappell, Ms. Harris

Does a California District Attorney Have Standing to Intervene in a Federal Habeas Corpus Case?

Further Strange Developments in Jones v. Chappell

The Attorney General said in a press release, "I am appealing the court's decision because it is not supported by the law, and it undermines important protections that our courts provide to defendants. This flawed ruling requires appellate review."  Undermines important protections?  Well, certainly "not supported by the law," "flawed," and "requires appellate review" are correct.  With apologies to Meatloaf, three out of four ain't bad.

News Scan

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Convicted Sex Offender Charged with Murder: Police in Washington have arrested and charged convicted sex offender Richard Atkisson with two counts of aggravated murder for the alleged killing of his two roommates this past weekend.  KOMO News reports that Atkisson admitted to police that he beat the two men to death after an argument escalated in their home.  Atkisson was sentenced to 23 years behind bars in 1993 for rape and also had prior convictions for burglary and failing to register as a sex offender, prosecutors also say Atkisson had an active warrant out for his arrest in California for violating his court-ordered supervision.

Arias Granted Delay in Penalty Phase Retrial: An Arizona judge has delayed the penalty phase retrial of convicted killer Jodi Arias until September 29.  Brian Skoloff of the Associated Press reports that Arias, who is acting as her own attorney, asked the judge to delay her trial in order to have more time to prepare.  Arias was convicted last year of killing her ex-boyfriend and faced a possible death sentence, however, the jury presiding over her case was unable to reach a unanimous sentencing decision.  Under Arizona law, prosecutors are allowed to hold a second penalty phase trial with a new jury in death penalty cases-if this jury also fails to reach a unanimous decision, Arias will automatically be sentenced to 25 years to life. 

Sex Offender Charged in Brutal Attack: A New York man has been charged with attempted murder after authorities say he pulled a woman into the woods and repeatedly stabbed her.  CBS Albany reports that 50-year-old James Sayers, a convicted sex offender, followed the woman for nearly a mile before attacking the woman and stabbing her so many times that his knife eventually broke.  A warrant had been issued for Sayers arrest shortly after the attack when his parole officer discovered that he had removed his electronic monitoring device, he had just been released from prison and put on parole in May after serving a sentence for robbery.


DOJ's Version of Unbiased Justice

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My friend Paul Mirengoff at Powerline has a depressing and ominous assessment of the chance that Officer Darren Wilson, the Missouri cop who shot unarmed but huge 18 year-old Michael Brown, can get a fair shake from the federal grand jury looking into the case.

Eric Holder's Justice Department is in Missouri, some 50 strong according to Megyn Kelly, to investigate the shooting of Michael Brown and to decide whether to charge police officer Darren Wilson with civil rights crimes. The investigation and decision is in the hands of the Criminal Section of the Civil Rights Division.

How much confidence can Americans have in the fairness and objectivity of this unit? The answer, I submit, is little if any.

Christian Adams at PJ Media has been covering the Criminal Section of the Civil Rights Division for years. PJ Media had to file a lawsuit to obtain the resumes of the lawyers Holder has brought into that group. According to Adams, it turned out that every one of his hires is a left-wing activist, and that some have histories of anti-police activity. 


What follows is a hair-raising rundown of the background of the lawyers who will be running the grand jury.  The short of it is that they're a bunch of far left ideologues.  

If you thought the Rick Perry indictment was a creature of politics, you're right. But I fear it was just a rehearsal.

" 'Curiouser and curiouser!' Cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English)." -- Lewis Carroll

The strange case of Jones v. Chappell, got a little stranger on August 11.  It was curious enough with the district judge's order, noted here and in several posts since.  Then the PACER docket shows a notice of appeal filed August 11 by Jones, which is curious, since the ruling appealed from is in his favor.  Even more curious is that when you download the actual document it isn't by Jones at all.  Or by Chappell.  The appeal is filed by "Mr. Emery D. Soos, Jr. and Dr. Robert V. Justice, Citizens of the State of California."

Um, nice try, guys.  The Court of Appeals is not amused.  "By August 26, 2014, non-parties Emery Soos and Robert Justice shall move in this Court for voluntary dismissal of this appeal or explain in writing why the appeal should not be dismissed for lack of jurisdiction due to their lack of standing to appeal."

August 26, interestingly, is the day after the deadline for the actual respondent to appeal, and given that there is not a single legitimate reason not to there should be a bona fide appeal in the Ninth Circuit on that date.

News Scan

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Governor Signs Execution Warrant: Pennsylvania Governor Tom Corbett has signed an execution warrant for convicted murderer Michael Parrish.  Alison Burdo of NBC 10 reports that 28-year-old Parish was found guilty and sentenced to death in May 2012 for the murder of his girlfriend and their 19-month-old child.  Parrish is scheduled to die by lethal injection on October 14, 2014, Pennsylvania hasn't executed a death row inmate since July 1999.

Convicted Cop Killers Denied Parole: The Ohio Parole Board has once again denied release for two men convicted of murdering a Cincinnati Police Officer in 1978.  Brad Evans of WLWT News reports that both men were originally sentenced to death for the crime, but that sentence was reduced to life behind bars by the state's Supreme Court.  Both men will be eligible for parole again in May 2019.

CA High Court Upholds Death Sentence: In a unanimous ruling, California's Supreme Court ruled in favor of upholding the death penalty verdict for convicted killer Gene McCurdy.  Lewis Griswold of the Fresno Bee reports that McCurdy was found guilty of kidnapping and murdering an 8-year-old girl nearly two decades ago.  McCurdy appealed his ruling based on the claim that statements given to detectives during the interview process should have been suppressed and that instructions given to the jury prior to sentencing were faulty.


Where Have All the Liberals Gone?

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People of my generation well remember the haunting anti-war song "Where Have All the Flowers Gone" written by Pete Seeger and popularized by Peter, Paul and Mary. It was running through my head this morning, and got me to thinking, as I mulled the media's coverage of the shooting in Ferguson, Mo.:  Where have all the liberals gone?

In days of yore, when there was a notorious homicide or some other infamous episode, what I used to hear was

--  "No rush to judgment!"

--  "In America, everyone is presumed innocent."

--   "We can't try this case in the press."

--  "No trial by mob."

I'm just not hearing that at all these days. 

Where have all the liberals gone?


Actual Innocence and Habeas Corpus

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Is a claim that a convicted prisoner is actually innocent of the crime, by itself without any claim that the trial was procedurally unfair, a ground for relief in habeas corpus?  That question remains unanswered.  Today in Jones v. Taylor, No. 13-36202, the Ninth Circuit reversed a district court's grant of relief to an Oregon prisoner convicted of intrafamily sexual abuse.  As sometimes happens in such cases, the witnesses (who are family of the defendant) recanted.  The opinion by Judge Tashima skips the question of whether a sufficient showing of actual innocence can be a ground for habeas relief and says that this showing doesn't make it.

This is a common outcome in such cases.  The Supreme Court seemed poised to decide the "actual innocence" question in Herrera v. Collins, 506 U.S. 390 (1993), but when it took a good, hard look at the evidence it saw that it fell "far short" of anything that might conceivably warrant overturning a conviction.  In the infamous Troy Davis case, the high court took the extraordinary step of sending an original habeas petition to a district court for fact-finding on innocence, where the district judge found that Davis's claim of innocence was "smoke and mirrors." 

The Other Side of the Story in Ferguson

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I take press reports with a grain of salt, not because I think reporters are biased (although some certainly are), but because I much prefer facts about alleged crimes to be proved by the rigors of presentation in court, in particular oath-taking and cross-examination.  This is one reason that, for example, I put no great stock in one-sided "reports" that, 22 years after the fact, Cameron Todd Willingham has been "proved" innocent by "more advanced" scientific testing conducted by his partisans without oversight, scrutiny, or adversarial process of any kind.

It is with this skepticism in mind that I bring you this report from the New York Post:  "A Dozen Witnesses Say Ferguson Teen Attacked Cop Before Shooting".  There is also a report out that the cop, Officer Darren Wilson, suffered a facial fracture as a result of being attacked by the teenager he shot.

If these reports are true, it's very difficult to see how a scrupulous prosecutor can indict Wilson.

Unfortunately, with the politically edgy Civil Rights Division on the case, the operative word here is "scrupulous." 

We shall see.

UPDATE:  The original source for this story, St. Louis Post-Dispatch reporter 
Christine Byers, has been on family and medical leave since March, and has tweeted that the story does not appear in the paper because "it did not meet standards for publication." This makes me happy that I started this entry by reiterating my skepticism about about media reports.  Of course the story may still be true; we should find out more in the days to come. 

Ryan v. Hurles Returns to SCOTUS

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Arizona's attempt to reinstate the death sentence of murderer Richard Hurles is back in the U.S. Supreme Court.  The prior petition was "relisted" an astonishing 22 times before the Ninth Circuit withdrew its opinion and issued a new one, causing the state to withdraw its petition.  The case was noted many times on this blog, including this post and this post, and it was a "regular" in John Elwood's "Relist Watch" at SCOTUSblog.

The new petition is number 14-191.

News Scan

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Minnesota Inmate Convicted of Murder: A Minnesota inmate has been sentenced to an additional 40 years behind bars after agreeing to plead guilty to killing a fellow inmate last December.  The Associated Press reports that 30-year-old Benjamin Beck plead guilty to second-degree intentional murder after telling prosecutors he had no choice but to kill the other inmate due to the fact that he was a convicted child rapist.  Beck had been incarcerated since 2007 after being convicted of aggravated robbery and first-degree burglary.

Convicted Killer Granted Stay of Execution: An Ohio man sentenced to death after being convicted of killing his two young children and former mother-in-law has been granted a stay of execution.  The Canton Rep reports that James Mammone was scheduled to be executed on March 8, 2017, the stay will remain in effect until he has exhausted all post-conviction court proceedings and appeals.  Mammone recently asked the court reconsider his murder convictions and death sentence, however, the court ruled by a vote of 6-1 to uphold both the verdict and sentence.

CA High Court Upholds Death Sentence: In a unanimous ruling, the California Supreme Court upheld the conviction and death sentence of a man who killed a young woman more than two decades ago.  Marjorie Hernandez of the Ventura County Star reports that Justin Merriman, a documented skinhead gang member, was sentenced to death in 2001 for the rape and murder of a Southern California college student.  Merriman challenged his conviction and sentence based on a claim of juror misconduct and evidence errors.

The Political Uses of Ferguson

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It was to be expected that the Usual Suspects would show up in Ferguson to push the Usual Causes, and would do so without finding out, or having any great interest in finding out, what actually happened.

Was this an NFL-sized gangbanger who had just committed a strong-arm robbery rushing a cop?  Was it a quick-trigger cop who got the drop on a teenager whose main "crime" was walking in the middle of the street?  Was it something else?

We don't know yet, but this fact makes no difference when the main point is to Fire Away.  Thus I bring you this Grievance-on-Steroids piece in the Atlantic.  I never thought I would say this, but it's enough to make Al Sharpton blush.

Nixon in 2016?

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Now here's an intriguing thought. Paul Kane and Robert Costa have this article in the WaPo on the possible impact of the Ferguson debacle on the possible 2016 ambitions of Missouri Governor Jay Nixon.

What Is Known about the Ferguson Shooting

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We don't as yet know anything like all the facts necessary to reach a judgment about whether the police officer who shot and killed Michael Brown in Ferguson, Mo. acted justifiably or committed murder, or something in between.

But we have learned some facts, and I want to present them without comment.

--  The Washington Post and numerous other outlets report that Brown was shot six times, all from the front, and had marijuana in his system.  The claim that he was shot from behind appears to be false.

--  Minutes before he and the officer encountered one another, Brown and another male robbed a convenience store and, in doing so, forcibly shoved a clerk much smaller in stature. The video is here.

--  It is often the case that a single shot will not disable a person charging at a police officer (which is not to say that Brown was, in fact, charging the officer here, a question that remains unsettled).

--  Brown was 6'4" and weighed 292 pounds, which, I believe, is larger than the average size of an NFL player.

--  One report  in a local paper states that Brown had recently taken up "rap" lyrics, which included, as apparently is usual for such things, explicit references to drugs and violence.

I repeat that none of these facts, individually or together, provides even a rudimentary basis for judgment.  But facts they are.

A Defense, Sort of, of the Perry Indictment

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As I've noted, a chorus of honest liberals has exposed and denounced the Perry indictment for the legally hollow political stunt it is.  See, e.g.,  this article and this one.  But some on the Left are holding out.

Exhibit A is this piece in The New Republic.  The thesis is that Perry, being a Very Bad Man, more-or-less deserves the wrath of a criminal accusation whether or not he's, ya know, actually guilty.  The indictment is, if not exactly cricket, at least clarifying.

Well, look, that's cool.  Some might say that taking such a view of the role of criminal law is repulsive.  I beg to differ.  It is, as the author argues, clarifying  -- clarifying about what lies ahead when the poisonous (and Marxist) theory that politics is everything prevails.

SCOTUS Clerk's Office Restructuring

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Chris Vasil is retiring as Chief Deputy Clerk of the U.S. Supreme Court on September 1.  He will be missed.  The Court has announced a restructuring, described in this announcement and copied after the break.

Woodall Bearing Fruit

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In the U.S. Supreme Court's last term, CJLF accomplished one of its long-standing objectives regarding Congress's landmark 1996 reform of federal habeas corpus.  On questions of law, including "mixed questions" of law and fact, a lower federal court can effectively overturn a decision of a state court only if the state court decision is either (1) contrary to U.S. Supreme Court precedent, or (2) an "unreasonable application" of U.S. Supreme Court precedent.  That second phrase is supposed to refer to application of existing rules to the particular facts of the case, not making up new rules by plowing new legal ground.  We got the Supreme Court to clarify that, and put the brakes on lower federal courts, last April in White v. Woodall, discussed in this post.

Friday we saw the effect of Woodall in keeping a Nevada murderer in prison where he belongs.  The opinion comes from the U.S. Court of Appeals for the Ninth Circuit, not friendly territory for law enforcement, written by Judge A. Wallace Tashima, not one of our best friends.

News Scan

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Realignment to Blame for Increase in Early Jail Releases: In an effort to relieve over-crowding caused by Governor Brown's Realignment plan, county jails across the state are being forced to release inmates at alarming rates-in Los Angeles County alone, male inmates are released after serving as little as 10% of their sentences while females are released after serving just 5%.  Paige St. John of the Los Angeles Times reports that on average, California county jails release more than 13,500 inmates early each month, leaving some to label the state's criminal justice system as a revolving door for criminals.  Just this week, authorities were forced to release a woman who snuck onto an airplane and flew to Los Angeles from Northern California after she served just three days out of her 117-day sentence.

Recently Released Rapist Charged in Home-Invasion: A New York man recently released from prison after serving 23 years behind bars for a rape conviction has been charged with breaking into a home and violently attacking a woman.   Denise A. Raymo of The Press-Republican reports that 40-year-old Timothy Jaworski has had a lengthy past with police in both New York and Massachusetts, and has served multiple prison sentences for home invasions, rape, and larceny.  Jaworski is currently being held on a $100,000 bond.

Convicted Murderer Loses Appeal for a New Trial: A Nevada man convicted of murdering a food deliveryman more than a decade ago will not get a new trial after the U.S. Ninth Circuit Court of Appeals reversed a lower court and reinstated his conviction.  Steve Timko of the Reno Gazette-Journal reports that 33-year-old Ryan Oshun Moore appealed his conviction based on the claim that the jury presiding over his case were not given the definitions of words such as 'willful', 'premeditated' and 'deliberate.'  Moore was found guilty of first-degree murder and sentenced to life in prison with the possibility of parole after twenty years.

Rosemary Lehmberg holds the office of District Attorney of Travis County, Texas because she was elected to it.  The question  --  given that she served time on a drunk driving conviction and acted like a belligerent teenager in the lockup after her arrest  --  is: How?  And the answer is an old standby, though often overlooked in the perplexity of the moment:  

She got elected because the alternative was even worse.

Now that might have you wondering, good grief, who was the alternative?

The alternative was an anti-death penalty crackpot, one-time Judge Charlie Baird. Baird's partisan and illegal antics in trying to posthumously exonerate multiple child killer Cameron Todd Willingham are epic, and have been chronicled by Kent here, herehere, and here.

So if you're in Travis County, who do you want "enforcing" the law, an ill-tempered drunk or a reckless, ideological zealot?

Answer:  Ummm, move.

Hard Legal Questions for the Perry Indictment

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Eugene Volokh of UCLA is a super smart, call-em'-as-you-see-'em professor of law. He's also the owner of the legal blog, the "Volokh Conspiracy."  I have disagreed with some of the "Conspirators" from time to time, as in our differing views on whether Eric Holder committed perjury when he testified before Congress that there was no "potential prosecution" of Fox News reporter James Rosen.  But the Volokh Conspiracy is widely read and, I think, almost universally respected.

As the blog of the Federalist Society reports today, Prof. Volokh has three tough questions about the indictment of Gov. Rick Perry, even taking the indictment on its own questionable terms:

1. To begin with, the law applies to a public servant's misusing property that is in his "custody or possession." What property was in the governor's custody or possession?

2. Beyond this, how does vetoing the appropriation qualify as "misuse," in the sense of "dealing with" the $7.5 million "contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant"?

3. Is the prosecution's theory that vetoes of appropriations are criminal if they are not seen as "faithful[] execut[ion of] the duties of the office of Governor" -- though deciding whether or not to "approv[e]" a bill is itself part of the duties of that office? Or is it that such vetoes are criminal if they do not "to the best of [the Governor's] ability preserve, protect, and defend the [federal and state] Constitution and law.  ###

Prof. Volokh's longer and more detailed analysis is here.



The Perry Indictment in One Picture

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Barack Obama's Dead Fly's photo.

Federalism and Other Head Fakes

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We've been hearing for years that if drugs are to criminalized at all, it should be left to the states, and that the federal government has no business in the field.

There are legitimate questions about the scope both of federal police power and the reach of its authority under the Commerce Clause.  In my view, such questions are more pressing now than ever in light of the ominous combination of the burgeoning regulatory state and the increased politicization of the Justice Department.  But the question whether the federal Controlled Substances Act is within Congress's power has been raised and settled long ago.  To my knowledge, after dozens if not hundreds of challenges, not a single court has held the CSA unconstitutional, and the most serious challenge to it was rejected almost ten years ago in Gonzales v. Raich.

One must wonder, though, about the authenticity of the complaints about federal overreach.  While many such arguments are rooted in a sincere if (in my view) mistaken view of federal power, others  --  most, I suspect  --  are just bellyaching by dopers who love getting blasted and want to belittle anything that stops the fun.

If these people were sincere in their federalism arguments, surely I would be hearing from them about the U.S. Justice Department's astonishing decision to "order" a second autopsy of the victim of the police shooting in Ferguson, Mo.  In my numerous years as a federal prosecutor, and more recently as a law professor, I never heard that the Justice Department had the authority to order any such thing. I'll be grateful to any reader  --  especially among those wanting criminal law to be left almost exclusively to the states  -- who can fill me in.

The World's Most Absurd Indictment, Cont'd

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The poisonous prosecutorial stunt masquerading as the Perry indictment is being exposed for what it is by honest liberals from coast to coast.

This, for example, is what Alan Dershowitz (whom I debated on CNN about capital punishment) is reported to have said:

Harvard Law Professor Alan Dershowitz calls himself a "liberal Democrat who would never vote for Rick Perry," but he's still "outraged" over the Texas governor's indictment Friday on charges of abuse of power and coercion.

The charges are politically motivated and an example of a "dangerous" trend of courts being used to affect the ballot box and politics, he told Newsmax on Saturday.

"Everybody, liberal or conservative, should stand against this indictment," Dershowitz said. "If you don't like how Rick Perry uses his office, don't vote for him....

Dershowitz also told Newsmax Perry was well within his rights when he vetoed the money for Lehmberg's office, as he "saw a drunk serving as DA" who "shouldn't be enforcing criminal law."

Dershowitz believes Perry will be acquitted, and the indictment will become an embarrassment to those involved.


I disagree with Prof. Dershowitz in one respect.  Perry will never be acquitted, because the indictment will never get to a jury.




Steve Hayward on Powerline writes:

[L]et's not move on before taking in the proximate cause of political dispute, the conduct of Travis County District Attorney Rosemary Lehmberg, who ironically runs the "public integrity section" of the DA's office while obviously having no public integrity whatsoever.  If you have 15 minutes of leisure and a strong threshold against disgust, take in these two videos of Ms. Lehmberg in action, first in her DUI stop (where her blood-alcohol level was .23), and then, even better, her appalling jailhouse behavior.

The videos are available here, in Steve's post.  They're quite a show.

There are some bad apples in the prosecutorial barrel, as in every other. Since Lehmberg is an elected prosecutor (having defeated the astonishing former "judge" Charlie Baird), the preferred way to remove her is through the exercise of political, not judicial, power. That of course is exactly what Gov. Perry was doing in vetoing a multi-million dollar appropriation for her office until it had cleansed itself of the stain that comes from having an out-of-control drunk and jailbird convict at its head.

If the Governor's veto is a criminal offense, I am Lynne Stewart.

I repeat my earlier prediction:  This indictment will never make it to a jury.


Politics & Prosecution, a Toxic Brew

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I was a federal prosecutor for 18 years under administrations of both parties (from William French Smith to Janet Reno).  Not once was I asked to participate in a case I had even slight reason to suspect was politically motivated. Apparently, times have changed.

Kent's most recent entry, and mine before it, discuss prosecutions in which the stench of politics is unmistakable.  The former is a federal case against a bond rating service, Standard & Poor's, which, much to the Administration's consternation, downgraded US sovereign debt when it became clear that the federal government was not going to take any serious steps to start to pay down, or even slightly curb the growth of, the largest national debt in the history of civilization. Runaway borrowing and debt has been a staple of Republican attacks on the Administration, which now apparently feels like S&P was giving aid and comfort to Obama's political opponents.

If there's a place in the US Attorneys Manual that authorizes prosecutions for that reason, I missed it.  Perhaps it's been added more recently.

The other case was brought by the same local Texas prosecutor's office that launched the "cutting edge" (to be charitable) campaign finance indictment against then-Congressman Tom DeLay.  Even liberals had some heartburn about that; it was well grounded heartburn, since the conviction, and the Rube Goldberg prosecution theory upon which it rested, did not survive even the first round in the state appellate courts.

We now see from that same district an indictment, this one against Gov. Rick Perry, for having the audacity to ask a convicted drunk-driving prosecutor to step aside and, when she did not, vetoing legislation that would have funded a part of her office.

I don't know whether the First Amendment or the separation-of-powers challenge to the indictment will be the primary basis for its dismissal, but I'll bet good money that this breathtakingly vindictive and concocted prosecution will never see a single juror impaneled.

I have been all over libertarians recently for their juvenile, unserious and sometimes dishonest arguments about the death penalty, plea bargaining and the rule of majoritarian law.  But cases like these show that libertarians have an important point: That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.

Prosecution As Payback

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Among the worst abuses of prosecutorial authority is to base a decision to prosecute on an unrelated grudge against the defendant.  Standard and Poors claims the U.S. Department of Justice has done exactly that, according to this editorial in the WSJ.

It's not a smoking gun. But Standard & Poor's claims in a new court filing that it has documents showing that government lawyers who have targeted the firm over its flawed ratings on mortgage bonds also had "intense interest in and engagement regarding S&P's downgrade of the United States."
*                                             *                                          *
Justice says there was no connection between the downgrade and its decision to charge S&P. But in a Tuesday federal court filing in the Central District of California, S&P says it has obtained internal Justice documents showing "that the two topics were often linked."

The documents are under a protective order and thus not public. But it's safe to assume S&P would want to stick to the facts because federal Judge David Carter can see the documents too. If S&P is right, then Justice will have to explain why lawyers tasked with investigating pre-crisis mortgage bonds were so keenly interested in a downgrade of government debt that took place years after the mortgage bond ratings. Do prosecutors investigate every time someone expresses a skeptical view on Treasury bonds?

The World's Most Absurd Indictment

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I'll be the first to admit I know zilch about Texas law.  I'll also freely admit that I'm no fan of Gov. Rick Perry, one of the most obviously not-ready-for-prime-time Presidential candidates I've ever seen.  My opinion of him did not improve when he started touting his program to save money (or, more accurately, to shift costs onto future crime victims) by an early prison release program.

But the indictment brought against him today by a grand jury sitting in Texas's nutty left-wing capital, Austin, is probably the most exotic and preposterous felony charge I've ever seen, and I've seen lots.  It makes the political prosecution of former Texas Congressman Tom DeLay look serious by comparison.

In brief, Perry has been indicted for vetoing an appropriation for a prosecutor's office after the prosecutor, a Democrat, was convicted of drunk driving and sent to jail. And no, your eyes are not deceiving you:  A governor got indicted for vetoing a bill.  From the Wall Street Journal, here's the story.

News Scan

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Sex Offender Charged with Murder: A New Jersey man classified as a 'moderate' sex offender after kidnapping and sexually assaulting a girl nearly 20 years ago has been arrested and charged with the murders of his cousin and her 10-year-old daughter.  Nicquel Terry of the Asbury Park Press reports that 58-year-old Brian Farmer murdered his cousin after she caught him taking pornographic photos of her 10-year-old foster daughter. Farmer was convicted of aggravated sexual assault and arson in 1996 and was sentenced to 25 years in prison, however, he was released to parole in 2009.

CA Supreme Court Upholds Death Sentence: California's Supreme Court has ruled in favor of upholding the death penalty for convicted double murderer Kelvyn Banks.  Metropolitan News-Enterprise reports that Banks was challenging his sentence based on the claim that he was deprived of his right to a fair trail when he was excluded from the courtroom during the penalty phase.  He was excluded after spitting on the judge and throwing a bag of excrement and urine.  Banks was convicted and sentenced for two separate murders committed in July 1996.

Ruling: Silence May be Used Against You: California's highest court has ruled that a suspect's silence may indicate guilt. Paul Elias of the Associated Press reports that at a vehicular manslaughter trial the prosecutor repeatedly informed the jury that the defendant failed to ask about the victims immediately after crashing into them, which was an indication of his guilt.  The high court agreed ruling that the defendant must explicitly invoke his right to remain silent' in order for his behavior in an interview to be inadmissible in court.

Dealing with the Police

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The recent police shooting of an unarmed 18 year-old African-American in Ferguson, Mo. has the press thundering about the crypto-fascist, and as-ever racist, outlook policemen supposedly wear as the universal chip on the shoulder.

I don't know all the facts of that case, and neither does anyone else, including those in the press, and in libertarian circles, who are calling for the police to be "demilitarized" (which is their word for "disarmed," although they're not about to admit it).

It could be that the teenager, who was huge, attacked the cop without provocation, in which case the cop's response is almost certainly not a crime or any other kind of misconduct.  It could also be that the cop was not in significant danger, knew it, and shot the teenager out of spite or because he was feeling a heavy badge, in which case this episode is murder, and the cop is deserving of stern and unflinching punishment.  Anyone who at this point claims to know it's one or the other is just blowin' smoke.

The case has raised many of the same shopworn issues about the relationship between the police and black teenage boys that we saw in the Trayvon Martin case (even though the shooter there was a would-be, and not an actual, policeman).

It seems to me that there are easy ways to avoid this sort of thing in the future, none of which involves the appearance of Al Sharpton or the eight millionth lecture from Eric Holder.  They involve entirely normal manners on both sides.

News Scan

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Bill Would Incarcerate Up More 'Low-Level' Felons: Ohio Attorney General candidate David Pepper has announced his support for a bill that would give judges more leeway when it comes to sentencing low-level felons.  Jeremy Pelzer of the Northeast Ohio Media Group reports that House Bill 251 would allow judges to send so-called 'low-level' felons to prison rather than probation for repeat offenses.  The bill is primarily aimed at drug dealers who carry slightly less than the amount of drugs the law requires to charge as possession for sale, in order to avoid prison and continue dealing while on probation.    

Convicted Killer Identified as Murder Suspect: Authorities in Colorado have announced that an inmate killed earlier this week was beaten to death by two other inmates, one of which is already serving a life sentence for murder.  Chris Vanderveen of KUSA reports that the other inmate involved in the killing is currently serving a 48 year sentence for an attempted murder conviction.  This is the sixth killing at this particular Colorado corrections facility since 2010.

New Hampshire Murderer Sentenced to Life: A New Hampshire judge has sentenced 31-year-old Seth Mazzaglia to life behind bars for his role in the rape and murder of a college student in 2012.  The Associated Press reports that Mazzaglia was convicted in June of first-degree murder and other serious felonies, and given the non-death penalty state's maximum sentence of LWOP.   Mazzaglia filed a motion earlier this week asking to skip his sentencing hearing in an effort to avoid listening to the victim's family impact statements, but the judge denied his request.   

Will Dahlgreen at YouGov has this article stating that according to that organization's survey, "50 years after the last execution in Britain, people still tend to support the reintroduction of the death penalty, by 45-39%."

However, as noted by in this post by Peyton M. Craighill and Scott Clement at The Fix, the WaPo's political blog (previously mentioned on this blog here) YouGov polls a self-selected sample, one of the worst ways to do polling.  Actual support is likely much higher, as has been indicated in recent years by legitimate polls.  See posts of 2010 and 2013.

News Scan

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Judge Calls 600 Potential Jurors in Death Penalty Case: A Denver, Colorado judge has announced plans to assemble a pool of 600 potential jurors for the upcoming death penalty trial against a man accused of stabbing five people to death in a bar nearly two years ago.  Jordan Steffen of The Denver Post reports that 24-year-old Dexter Lewis faces 16 counts, including robbery, arson, and first-degree murder, for the October 2012 attack that left five people dead.  This will be the first time since 2001 that Denver prosecutors are seeking the death penalty.  Attorneys will begin questioning potential jurors in January 2015.

NY Judges to Hear Child-Immigrant Cases: Beginning today, New York City immigration judges will start hearing requests for asylum made by thousands of children who have illegally entered the U.S.  Marisa Schultz of the New York Post reports that on average, New York City immigration judges are the most lenient in the country, granting 80% of requests made by asylum seekers—a number much higher than the national average of 50%.  Since October 2013, an estimated 63,000 children have entered the U.S. illegally, resulting in what many are calling an immigration crisis.

Police Make Arrest in 30-Year-Old Cold Case: Authorities have arrested a Minnesota man in connection with a murder that took place in Texas more than 30 years ago.  Tim Lammers of Bring Me The News reports that the 53-year-old suspect is believed to have stabbed San Antonio businessman Francisco Narvaez to death in a hotel room in September 1983.  Authorities re-opened the case in 2011 and enlisted the help of the Oklahoma Bureau of Investigation.  The suspect is expected to be extradited to Oklahoma and faces charges for second-degree murder and being a fugitive.

Joseph Epstein has this article in the WSJ, titled What's Missing in Ferguson, Mo., subtitled More than ever, the absence of black leadership, and the contrast with the civil-rights era, is painfully clear.  An excerpt follows the break.

News Scan

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Texas Murderer Loses Appeal: A Salvadoran man convicted and sentenced to death for murdering two people in Texas has lost his most recent federal appeal. The Associated Press reports that 44-year-old Gilmar Guevara appealed his sentence claiming ineffective assistance of counsel and that a mental impairment disqualifies him for a death sentence. Guevara was convicted in 2001 for murdering two store clerks during an attempted robbery.

Serial Killer Sentenced to Four Life Terms: An Illinois man convicted of murder and sentenced to two life terms has been found guilty in four additional murders and has been ordered to spend four more life sentences behind bars.  The Associated Press reports that Nicholas Sheley killed a total of eight people during the summer of 2008 in Illinois and St. Louis, Missouri.  Illinois does not have a death sentence but Missouri does.  If Sheley is convicted of the two Missouri murders, he could receive a death sentence.

Hundreds of Criminal Immigrants Released: A recently obtained report from the Department of Homeland Security Inspector General reveals that more than 600 criminal aliens were released by the federal government in 2013 because of budget cuts.  Jana Winter and Judson Berger of Fox News report that in the early months of 2013, Immigration and Customs Enforcement (ICE) released hundreds of "criminal aliens" from jails to comply with budget cuts and other fiscal restraints.  While the majority of the aliens were classified as "level 3"  lower level offenders, a fraction of the aliens had been convicted of more serious crimes ranging from burglary and money laundering to rape.


Today the U.S. Supreme Court issued one of its midsummer orders lists.  These are usually just routine administrative orders, but occasionally you get something interesting. 

In today's orders list, we find this gem from Ballard v. Pennsylvania, No. 13-9364:  "The letters of June 2, July 8, July 14, and July 16, 2014, received in this case, are referred to the Disciplinary Board of the Supreme Court of Pennsylvania for any investigation or action it finds appropriate."  Hmmm.  What's that about?

This is a capital case.  Ballard is a so-called "volunteer," a death-sentenced inmate who doesn't want his sentenced reversed or even delayed.  Marc Bookman of the Atlantic Center for Capital Representation, claiming to be Ballard's lawyer, filed a certiorari petition asking the U.S. Supreme Court to review the decision of the Pennsylvania Supreme Court affirming the judgment.  Ballard himself had a thing or two to say about that.

News Scan

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Ohio Death Penalty Moratorium Extended Until 2015: A federal judge has ruled in favor of extending a temporary moratorium on executions in Ohio until January 15, 2015.  Jeremy Pelzer of the Northeast Ohio Media Group reports that the extension will allow the state to have more time to implement new lethal injection procedures.  The time extension will delay four scheduled executions, the state's high court has yet to announce when those executions will be rescheduled.

CA Governor Reverses Parole Decision: California Governor Jerry Brown has reversed a state parole board decision to grant parole to convicted killer and former Charles Manson follower Bruce Davis.  Westside Today reports that this is the third time Davis has been recommended for parole and later rejected, Governor Brown has rejected him twice and Arnold Schwarzenegger also reversed his parole decision in 2010.  Davis was convicted of murdering two men in 1969 and was sentenced to life behind bars.

OK Sets Execution Dates for Convicted Killers: Three Oklahoma men convicted of murder and sentenced to death have been scheduled to be executed within a four-week period later this year.  The Associated Press reports that the state's execution protocols are currently under review after the so-called  'botched' execution of Clayton Lockett earlier this year.  The state Attorney General has announced that no execution will take place until their investigation is complete.  Several other states around the country have been forced to reevaluate execution protocols after a lethal injection drug shortage, caused by death penalty opponents, forced them to explore other execution methods. 

Claire Groden has this article in the WSJ:

Two summers ago a home invasion by gang members on the city's South Side went wrong when one of the robbers shot another one in the back of the head, according to Chicago police. Sixteen-year-old Douglas Bufford was killed, and 19-year-old Jermalle Brown was charged with first-degree murder. His trial begins on Aug. 15, and it may attract more attention than usual in a city plagued by violent crime, just as his arrest did. Why? Because at the time of the shooting, Douglas Bufford and Jermalle Brown were also on the Illinois state payroll, earning $8.50 an hour to hand out antiviolence pamphlets.

Such are the bitter ironies of Gov. Pat Quinn's Neighborhood Recovery Initiative, a now-defunct $54.5 million program whose failures are under new scrutiny as the Illinois governor, a Democrat, campaigns for re-election in November. Mr. Quinn launched the anticrime plan four years ago to "take on the root causes of violence in neighborhoods all across the city of Chicago." That didn't happen. Over the first two years of the initiative, the Chicago murder rate rose 20%, and the murder rate within city limits today is triple the national average. A state audit of the Neighborhood Recovery Initiative, or NRI, suggests that as much as 40% of the program's funding was simply wasted.
We should be extremely skeptical of anyone claiming "to take on root causes" of crime.  The primary root cause is cultural decay, government's ability to change that is limited, and few of the people using the term "root causes" have any intention of addressing it.  Mostly they seem to be interested in diverting the government program that has actually worked in reducing crime -- strong law enforcement.
The Sixth Circuit Court of Appeals has ruled that a Michigan man did not violate federal forced labor laws by having children do household chores. The court found that 18 U.S.C. § 1589, a statute designed to prevent forced labor by threat, harm, or abuse, does not extend to activities conducted by children in the home traditionally seen as normative chores. The opinion is here.

Jean-Claude Toviave, an immigrant from Togo in 2001, illegally brought four young relatives - a younger sister, two cousins, and a nephew - to live with him in 2006. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would often beat the children if they misbehaved, didn't follow his rules, or failed to perform assigned chores. He was apparently quick to beat the children and did so with a myriad of objects as well as has fists.

After school personnel became worried about abuse in the home, they contacted local authorities and an investigation ensued. The Department of Homeland Security became involved once it became clear that the children had come into the country illegally. Toviave was charged with visa fraud, mail fraud, forced labor, and human trafficking. He pled guilty to visa and mail fraud, the trafficking charge was dropped, and he proceeded to trial on the forced labor charge. He was convicted of four counts of forced labor, one for each child.

While complicated by the fact that Toviave was neither the children's biological father nor their legal guardian, the Sixth Circuit found unanimously that while the abuse the children suffered was reprehensible and cruel, Toviave had not violated 18 U.S.C. § 1589.
Was President Reagan's press secretary James Brady, who died last Monday, murdered by John Hinckley 33 years ago?

That is the odd question raised by a ruling of Virginia's medical examiner, who has determined that the death was a homicide, evidently finding a sufficient causal connection between the wound and the death.  Peter Hermann has this story in the WaPo.

At common law, a death was not a homicide unless it occurred within a year and a day of the blow.  States have been scrapping that rule, and in Rogers v. Tennessee, 532 U.S. 451 (2001), the Supreme Court said that if a jurisdiction's year-and-a-day rule had been established in case law, that rule could be scrapped retroactively.  (A statute repealing a statutory year-and-a-day rule presumably could not, as that would be an ex post facto law.)

Much as I would love to see Hinckley go to prison, where he should have been all along, I very much doubt that causation could be stretched this far in a criminal case, just as a gut reaction.  Plus, the insanity verdict in the original case would probably preclude the government from relitigating his sanity.

What's the Matter with Kansas?

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Its state supreme court, that's what.  That court is as bad on capital cases as California's old pre-1986 Bird Court was.  They don't seem to learn from their repeated reversals by the U.S. Supreme Court, including last term's unanimous Kansas v. Cheever (CJLF brief here).  In July 18's reversal of the death sentence of a double murderer, Justice Biles notes in dissent:

I dissent from the majority's holding that Sidney Gleason's sentence was imposed in violation of the Eighth Amendment to the United States Constitution because the district court failed to explicitly instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The majority's conclusion defies the United States Supreme Court's established Eighth Amendment jurisprudence and lacks any persuasive analysis articulating why the circumstances in this case justify a departure from that precedent.

Godfather Tactics By Pot Growers?

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One of the most memorable scenes in the original Godfather movie is when the Corleone family pressures a movie mogul by killing his prized horse.  Something similar may have happened for real in rural Humboldt County, California.  The dog of ecologist Mourad Gabriel was killed by red meat laced with rat poison thrown into his back yard.  Gabriel had been studying this poison and showing its detrimental effects on the environment.  Vivian Ho has this story in the SF Chron, headlined "Was scientist's dog poisoned by pot growers to silence him?"

According to Jonathan Evans of the Center for Biological Diversity, "many of those most affected by Gabriel's research into brodifacoum are illegal marijuana growers who pollute public lands with their illegal farms ...."

News Scan

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Execution Date set for Double Murderer: A Missouri man convicted of murdering two people and sentenced to death more than a decade ago has been scheduled to be executed by lethal injection next month.  Rudi Keller of the Colombia Daily Tribune reports that 40-year-old Earl Ringo Jr. was one of two people convicted in the robbery and murders of a restaurant manager and delivery truck driver in July 1998.  Ringo's accomplice pled guilty to first-degree murder in order to avoid a possible death sentence and was sentenced to life without parole. 

KS Attorney General to Appeal Capital Rulings: The Kansas Attorney General's office has announced plans to petition the U.S. Supreme Court for review of three recent state Supreme Court decisions that overturned death sentences for three murderers.  The Great Bend Tribune reports that during its last term, the U.S. Supreme Court agreed to hear only five percent of petitions review filed by state attorneys general.  Kansas should be notified by the high court regarding its cases before the end of the year.  No one has been executed in Kansas since 1965. 

Arrest Made in Decades-Old Homicide Cold Case: A New Jersey mother has been charged with the murder of her five-year-old son 23 years after reporting him missing from a local carnival.  Lorenzo Ferrigno of CNN reports that Michelle Lodzinski, who has since relocated to Florida, had been a suspect, but police were unable find sufficient evidence to charge her.  During a cold case investigation, new evidence was discovered to support a grand jury indictment charging Lodzinski with her son's murder.   

Pants on Fire

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Dino Cortopassi, a farmer and businessman from California's Central Valley, has been taking out a series of full-page ads in the state's major newspapers (at great expense, no doubt) regarding the spending habits of the state's government.  The series is provocatively titled "Liar, Liar, Pants on Fire!"  The most recent ad takes on corrections:

The Judicial overcrowding mandate forced a reduction of inmate population in California's prisons. Using that mandate as its cover, Sacramento shifted significant COR costs onto Counties/Cities, while claiming to make Counties/Cities whole via "Realignment" payments. That too was a State con job because Realignment "underfunded" County/City cost increases! By comparing county realignment dollars ($10,900 per capita) to COR avoided costs ($34,960 per capita) the underfunded scam is exposed! i.e., The difference between $34,900 and $10,900 equals $24,000 of per capita costs that COR dumped onto Counties/Cities!

That's why County/City Public Safety costs have become staggering, and virtually all County Jails were forced into inmate "early release" on a daily basis. If your County/City Public Safety costs have exploded, send a Thank You note to Governor Brown! Finally, a 29% reduction in COR's 2011/12 population should have reduced its 2014/15 budget. Surprise! Despite COR's 75,000 inmate/parolee exodus, the 2014/15 budget is HIGHER THAN PRE-EXODUS!  If a cost-cutting Governor was in charge, how could that be?!
The Wall Street Journal has this article about the convictions in the UN-backed Extraordinary Chambers in the Courts of Cambodia of Khmer Rouge intellectual and political leaders Nuon Chea and Khieu Samphan.

Nuon Chea, 88 years old, the Khmer Rouge's chief ideologue and former deputy to late leader Pol Pot, and 83-year-old Khieu Samphan, the former head of state, were sentenced to life imprisonment on Thursday after being found guilty of crimes against humanity--directing murder, political persecution and other inhumane acts related to the mass eviction of city-dwellers and executions of enemy soldiers.

The verdict, coming nearly three years after the trial began, marked the first convictions secured against top-tier regime officials by the United Nations-backed tribunal, long plagued by funding shortfalls and perceived political interference.
The article hails the convictions as justice for the victims of Khmer Rouge murder and pillage (crimes against humanity as the tribunal calls it) at long last, but convictions are not justice. A criminal conviction is merely a prerequisite to justice. It is the sentence that follows a conviction that determines if justice has been served.

Joshua Crawford blogging at C&C

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We welcome to the blog Joshua Crawford, third-year law student at Suffolk University, who is interning at CJLF this summer. His first post is here.

News Scan

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Cop Killer Denied Parole: A Florida man convicted of murdering an off-duty police officer nearly 40 years ago will not be eligible for parole until January 2097 after a state panel found no reason to change his release date.  James L. Rosica of the Tampa Tribune reports that 61-year-old Mark Mikenas shot and killed the off-duty officer during an attempted robbery at a 7-Eleven in November 1975.  Mikenas was originally sentenced to death for the murder, but that sentence was overturned and he was sentenced to life with the possibility of parole.

Federal Government Allows Criminals to Enter U.S: According to a Border Patrol agent, the Federal Government has been allowing convicted murderers and other dangerous criminals from Central America to be released into the U.S.  CBS Washington D.C. reports that these gang members and criminals are able to enter the country due to a loophole that allows unaccompanied women and children to stay in the U.S. if they claim to have no family in their home country.  Between October 2013 and June 2014, more than 57,000 children have entered the U.S. illegally without a parent or guardian. 

Serial Baby Killer up for Parole: A Texas woman convicted of murdering two babies and believed to be responsible for the deaths of 40 other infants is scheduled to have a parole hearing later this week.  Ellisha Rader Mannering of Web Pro News reports that authorities believe Genene Jones, a registered nurse, was injecting dozens of babies with lethal chemicals in order to cause a medical crisis, resulting in dozens of infant deaths.  Jones was sentenced to 99 years plus an additional 60 years for the murders, and if she is denied parole later this year, she will be scheduled for mandatory release in 2017 under a state law that prevents overcrowding in Texas prisons. Update:  Robert Arnold reports for KPRC: "Convicted killer Genene Jones has been denied parole. According to officials with the Texas Board of Pardons and Parole the vote to deny Jones' parole was unanimous. State officials also said Jones received what is called a 'serve all,' which means Jones will not be eligible for another parole review before her mandatory release in February 2018."

Simian Selfie Follow-Up

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MONKEY-SELF-PORTRAIT.jpg Off-topic but hilarious, David Post at the Volokh Conspiracy has a follow-up on the copyright dispute over this selfie, previously noted on this blog three years ago.

Update:  Abby Phillip has this story in the WaPo.
I had high hopes for Eric Holder when he was appointed Attorney General.  He had at one point been a career prosecutor, and by the mid-nineties had become the Clinton-appointed US Attorney for the District of Columbia.  He also seemed to me, from the very few interactions I had with him, to be a level-headed man with a wicked sense of humor.

He still has the sense of humor, but has become far too political as Attorney General. Among other things, he plays to the Democratic Party's constituencies pretty shamelessly, see, e.g., my post here, and did so again last Friday in his obsequious speech to those who are ostensibly (though not actually) his "adversaries" in the criminal defense bar.  A day or two later, he gave a much shorter, and perfunctory, video talk to the prosecutors whose work he's busy scuttling.

'Twas not ever thus.

News Scan

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Judge to Allow Death Penalty Option in Retrial: A Pennsylvania judge has ruled in favor of allowing prosecutors to seek the death penalty for a man convicted of murdering a woman ten years ago.  The Altoona Mirror reports that jurors in the first trial for 41-year-old Paul Ross deadlocked on whether or not he should be sentenced to death or life behind bars.  Ross' defense attorneys argued that the original jurors essentially decided against sentencing their client to death, therefore it should be barred as a sentencing option in his retrial.     
    
Illegal Immigrants Suspected of Killing Border Patrol Agent: Two illegal immigrants from Mexico have been arrested for the Sunday evening murder of an off-duty U.S. Border Patrol agent.  Fernando Del Valle of the Brownsville Herald reports that the two suspects had been arrested and deported several times in the past and confessed to committing several robberies in the local area.  Both men are facing charges of capital murder, attempted capital murder and aggravated robbery.

Prosecutors Can Seek Death Penalty for Mass Killer: A California judge has ruled that, in spite of prosecutorial misconduct, he would allow the district attorney to seek a death sentence for a man convicted of murdering eight people at a Southern California beauty salon in 2011. Paloma Esquivel of the Los Angeles Times reports that earlier this year, Scott Dekraai pled guilty to eight counts of murder and one count of attempted murder, but wanted the death penalty off the table based on claims of prosecutorial misconduct.  The judge ultimately ruled to allow the death penalty,  citing the prosecutor's mistakes as negligent rather than malicious.

A Different Kind of Polygraph

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Blake McConnell and Timothy J. Weber have an article in the current FBI Law Enforcement Bulletin titled The Concealed Information Test: An Alternative to the Traditional Polygraph.

Instead of asking Professor Plum "Did you do it?" ask him "Was it done with the lead pipe? With the wrench? With the revolver?"  If only the perpetrator and the investigators know the answer, the theory goes, the perp's reaction to the right answer will differ from his reaction to the wrong answers in a way different from innocent people.  Follow this with "Was it done in the Conservatory?" and so forth, and you may build a compelling case.

Polygraph evidence is generally not admissible in court, although in United States v. Scheffer, 523 U.S. 303, 318 (1998) Justice Kennedy noted in a concurring opinion for himself and three others, "some later case might present a more compelling case for introduction of the testimony than this one does."

One problem with traditional polygraphs is that the worst liars are the best liars.  They can lie through their teeth all day long and never feel the twinge of guilt that is the basis of the physiological reaction to telling a lie.  McConnell and Weber note:

Many researchers have concluded that the [Concealed Information Test] is more appropriate for testing psychopathic offenders who demonstrate a lack of emotion associated with the defensive-type responses underlying [Comparison Question Test] theory. There may be an increase in orienting response--upon which the CIT is based--associated with psychopathy; therefore, psychopaths may be more suitable for CIT testing than others.
The Japanese have been doing this since the 1950s.  Sounds interesting.

About That "Unstoppable Momentum"....

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Renowned sentencing expert (and long time buddy) Prof. Doug Berman put up a post about a year ago with this title:  "Could Momentum for Sentencing Reform Now Be Unstoppable in the Federal System?"  The gist of it was that, what with Eric Holder on board, the very enlightened coalition of libertarian-leaning Republicans like Rand Paul, and liberal Democrats, would enact significant sentencing reform legislation.  ("Sentencing reform," for those unfamiliar, means only one thing, to wit, putting felons back on the street faster than they get there now).

Doug quoted a gushing article by Juan Williams in The Hill newspaper that said, among other things:

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency -- a bipartisan success in passing new laws to reduce the nation's prison population.

So where are we now with that which is unstoppable?

The Story of a Minor Crime

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We often hear that the law overpunishes "non-violent" offenses. This usually means theft of some sort, and the phrase "non-violent" is basically used as a cipher to imply "non-harmful" or "not all that harmful."

So I want to tell you the story of a non-violent crime that recently came to my attention via Facebook and email messages from the parents of the victim.  I have changed the proper names to conceal the identities of the people involved.  The first message is a Facebook entry from the mother.


SCOTUS Denies Stay to Worthington

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The US Supreme Court has denied stays of execution for Missouri murderer Michael Worthington.  In one case he was seeking review of the Missouri Supreme Court decision.  In the other, he asked for a stay pending a decision by the U.S. Court of Appeals for the Eighth Circuit.   Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from the denial of stay in the latter case.

Update:  Missourinet reports, "5 grams of pentobarbital were administered at 12:01 a.m.  He appeared to quit talking to his family by 12:02 and appeared to quit breathing at 12:03.  The Department of Corrections places the time of death at 12:11."

That's how it's done.  Pentobarbital is quick, effective, and painless.  Congress should outlaw the manufacturer's restrictions on resale as a restraint of trade.

Willingham, Again

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Eliott C. McLaughlin reports for CNN:

More than a decade after his execution, Cameron Todd Willingham is still a pawn in the debate over the death penalty.

Opponents of capital punishment say Willingham's is a clear case of an inmate being wrongfully executed, while the original prosecutor and state of Texas have been steadfast in their assertion that Willingham should be no one's cause célèbre.

"Willingham was a psychopathic killer who murdered his three children," John H. Jackson, the former Navarro County prosecutor who handled the case in 1992, wrote in an e-mail. "He submitted to a polygraph with predictable results, he confessed the murders to his wife, the trial evidence established two prior incidents when he tried to kill his children in utero by vicious attacks on his wife."
There are many prior posts on this blog on this case.  A few of them are:

Firing Back in the Willingham Case

More on Willingham Case

Willingham's Last Words

Statement on Willingham

Stacy Kuykendall press conference

Folding the Tent on Charlie Baird's Circus

Inconclusive Willingham Report

Still Guilty

News Scan

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Texas Crime Up After Immigration Surge: A group of non-paid police officers are volunteering in Brooks County, Texas to help  gain control of an area overwhelmed by the recent illegal immigration from South America.  Bob Price of Breitbart Texas reports that Brooks County is a popular area for immigrants to enter the U.S., and police there are dealing with increased rapes and  sexual assaults upon women illegally crossing the boarder.  Local law enforcement has also been engaged in several vehicle pursuits causing damaged property and injuries. 
 
CA High Court Upholds Death Sentence: California's Supreme Court has upheld the death penalty for a man convicted of two murders occurring in 1994 and 1995.  City News Service reports that attorneys for Robert Carrasco challenged his sentence claiming that he was not given a fair trial because the judge denied his request for a second attorney and allowed evidence of of Carrasco's escape from jail prior to trial.  While the high court affirmed Carrasco's death sentence, it struck the "especially heinous, atrocious and cruel"  special  circumstance. 

New Law Allows Parole for Murderer: An Alabama man convicted of murder as a juvenile has been sentenced to life in prison with the possibility of parole after 15 years, under a new sentencing law that took effect in January 2014.  Kent Faulk of AL.com reports that 18-year-old Shirell Smith was convicted and sentenced to prison for a murder he committed at the age of 16.  He is among the first murderers sentenced under the state's new guidelines which allows judges to give juveniles convicted of aggravated murder life with the possibility of parole (LWOP).  The new law responds 2012 U.S. Supreme Court ruling in Miller v. Alabama announcing that laws mandating LWOP for juvenile murderers were unconstitutional.



A Fool for a Client

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Meanwhile, back in Arizona, Jodi Arias has exercised her "constitutional right ... to make a fool of [her]self."  Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J., dissenting).

AP reports:

PHOENIX (AP) -- A judge ruled Monday that Jodi Arias can represent herself in the upcoming penalty phase of her murder trial, where jurors will decide whether she is put to death for killing her ex-boyfriend.

Arias, 34, was convicted of first-degree murder last year in the 2008 killing of Travis Alexander, but jurors couldn't reach a decision on sentencing. Under Arizona law, while Arias' murder conviction stands, prosecutors have the option of putting on a second penalty phase with a new jury in an effort to secure the death penalty.

Arias, who has long clashed with her defense lawyers and tried to fire them previously, asked Judge Sherry Stephens to let her serve as her own lawyer during the second penalty phase set for Sept. 8. Stephens granted the request but said there would be no delays.

"I do not believe it is in your best interest ... I strongly urge you to reconsider," Stephens told Arias before granting the motion.

Missouri Execution

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Worthington v. Roper, 631 F.3d 487, 492 (CA8 2011):

On the night of September 29, 1995, [Michael] Worthington broke into [Melinda] Griffin's St. Charles County condominium. He used a razor blade to cut through the screen in the kitchen window and confronted Griffin in her bedroom. After strangling her into unconsciousness, Worthington raped Griffin with such force that he [caused severe physical injuries]. Griffin regained consciousness during the rape and attempted to fight Worthington, but he beat her and strangled her again, this time killing her. He then stole her jewelry, credit cards, mobile phone, keys, and car.
Guilt was confirmed by DNA and by Worthington's possession of Ms. Griffin's jewelry and keys.  He also confessed.  The judgment was affirmed on direct appeal in State v. Worthington, 8 S.W.3d 83 (Mo. 1999).

For a case with no question of guilt to drag on for another 15 years after the direct appeal is a travesty, but long-overdue justice is finally scheduled for tonight.  Carey Gillam has this story for Reuters noting the scrutiny of this execution after the Wood execution in Arizona.  But Missouri still has pentobarbital, the superior drug for this purpose as noted here and here.

Update:  Jim Suhr of AP has this story on the last-minute appeals.

Update 2: Susan Weich of the St. Louis Post-Dispatch has this article on Mindy Griffin and her parents, Carol and Jack Angelbeck.

Nominees and the Senate

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Al Kamen and Colby Itkowitz have this story at the WaPo on nominees left hanging "when senators ran for the exits on Friday."  They note a deplorable situation on ambassadorships -- with plenty of blame to go around -- but the pertinent part for this blog is judicial nominations.

Remember Jimmy Carter?  He was only President for one term in what seems like ages ago.  Yet he caused enormous and long-lasting damage through his judicial nominations.  It was on his watch that the Ninth Circuit became the jurisprudential disaster area that it remains to this day.  All three of the judges on the three-judge district court in the Plata prisoner release fiasco were Carter appointees.  Thank God he didn't get any Supreme Court appointments.

Until last November, Republicans were filibustering President Obama's worst nominees, a tactic they deplored when President Bush was making the nominations.  Then Majority Leader Harry Reid invoked the "nuclear option," a move he denounced as a travesty when President Bush was making the nominations.

Kamen and Itkowitz note that "the clock is not looking favorable" for the eight district court nominees pending on the Senate floor.  Hopefully, the 114th Congress will have a Republican majority in the Senate and on the Judiciary Committee, with Charles Grassley in the chair, and fringe nominees can be blocked with a simple majority vote or not even make it out of committee.
Jim Salter reports for AP:

ST. LOUIS (AP) -- Despite a shortage of lethal-injection drugs, two of the nation's most active death penalty states have quietly carried on with executions by turning to pentobarbital, a powerful sedative that generally puts inmates to death swiftly and without complications.

Missouri and Texas have avoided the prolonged executions seen in other states where authorities are struggling to find a reliable chemical combination. The drug's apparent effectiveness raises questions about why it has not been more widely adopted.

"There is a better drug, and that better drug is pentobarbital," said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.

Curious that the story says "raises questions" and quotes me on another point but leaves out my explanation of why more states aren't using pentobarbital -- the opponents have created an artificial shortage by harassing the suppliers.  The problematic executions conducted with midazolam are entirely the fault of the death penalty opponents.


News Scan

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CO Legal Marijuana Affecting Surrounding States: Since Colorado began selling legalized marijuana last January, several nearby states have experienced an uptick in pot trafficking across their state lines.  CBS News reports that nearly half of the marijuana purchases in Colorado have been made by out-of-state buyers. At least 40 states have reported confiscating marijuana purchased legally in Colorado. Last year, 288 people were caught smuggling marijuana across Colorado state lines.  Experts believe is just 10% of the actual number of traffickers. 

CA Legislature to Vote on Firearm Control Bill: A bill set hearing in a California Senate committee would take firearms away from those who have shown signs that they may harm themselves or others.  Don Thompson of the Associated Press reports that AB1014 would allow family members, licensed therapists and health care providers to petition a judge to remove firearms from someone deemed to be potentially dangerous.  The law, which if passed would be the first of its kind in the nation, was prompted after this year's deadly attack near UC Santa Barbara that left six dead including the gunman who had shown signs of depression and anger towards himself and others. 

Convicted Killer up for Parole for the 27th Time: A family in Texas is preparing to attend the 27th parole hearing for the man convicted of murdering their daughter more than 45 years ago.  Tommy Witherspoon of the Waco Tribune reports that 71-year-old Carlos Dan Stultz was originally sentenced to death for the crime in 1969, but that sentence was later commuted to life in prison after the U.S. Supreme Court declared the death penalty unconstitutional in 1972.  Stultz is currently serving two life sentences for two murders as well a 50-year sentence for burglary.

The science of public opinion polling is discussed on this blog from time to time.  I have been critical occasionally of the way poll questions have been worded, but the major news organizations to date have at least used valid polling methodology.  That's about to change, apparently, according to this post by Peyton M. Craighill and Scott Clement at The Fix, the WaPo's political blog:

A new state election polling collaboration between the New York Times, CBS News and internet pollster YouGov has drawn an unusual public rebuke from the leading organization of survey researchers, adding fuel to a fiery debate over what makes a poll "good" or "bad".

The American Association for Public Opinion Research (AAPOR) criticized the Times and CBS for its state polling with YouGov, saying the survey methods used by the polls has "little grounding in theory" and a lagging disclosure of methodological details required to assess the poll's quality. In addition, AAPOR chided the Times for removing its published set of poll reporting standards which had mostly barred the use of opt-in internet surveys -- like those used by YouGov--  by the newsroom and replacing it with a note explaining that it has begun a process to review its polling standards.*
I will venture a prediction that polls on crime issues that are based on self-selected samples from the Internet will show a large and immediate jump in the direction of soft-on-crime positions.

Sentencing by the Numbers

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Devlin Barrett reports at WSJ Law Blog:

Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.

In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.

"By basing sentencing decisions on static factors and immutable characteristics--like the defendant's education level, socioeconomic background, or neighborhood--they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society," Mr. Holder told the defense lawyers. Criminal sentences, he said, "should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
I have disagreed with and criticized Mr. Holder at times, sometimes strongly, but he's right on this.  The sentence for a criminal offense should depend on the crime the defendant chose to commit and the crimes he has chosen to commit in the past.  That is justice.

See also today's News Scan and the story linked there.

News Scan

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AL Postpones Executions Until 2015: An Alabama lawmaker has announced that the state will not be able to resume executing death row inmates until Spring 2015.  The Associated Press reports that Alabama has run out of lethal injection drugs, and pharmaceutical companies are refusing to sell drugs to the state without assurance that they will have immunity from lawsuits by death penalty opponents.  The state has 16 death row inmates who have exhausted all of their appeals and are awaiting execution.

Attorney General to Oppose Data-Driven Sentencing: Attorney General Eric Holder plans to oppose using data when sentencing defendants, citing his belief that judges should use facts of a crime rather than statistical predictions on future behavior in order to keep justice equal.  Massimo Calabresi of TIME reports that over the past decade, states have begun using databases of information about criminals as a way of identifying risk factors for repeat offenders.  Judges are supposed to use this data rank defendants according to risk as an aid in sentencing.  Holder will address the issue in his annual report to the U.S. Sentencing Commission.

NV High Court Rejects Death Penalty Appeals: The Nevada Supreme Court has rejected appeals filed by three murderers on the state's death row.  Cy Ryan of the Las Vegas Sun reports that the three murderers challenged their sentences for a variety of reasons including ineffective counsel and a claim of insanity.  Nevada has executed 12 death row inmates since the death penalty was reinstated in 1976, most recently in April 2006.

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