November 2014 Archives

Poll on Police Prejudice Against Blacks

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CNN published an interesting poll asking, "In general, how many police officers 
in the area where you live do you feel are prejudiced against blacks:  most of them, some of them, only a few of them, or almost none them?  The results were:


 
  ALLWhitesNon-whites  
  %%%  
 

Most

8710

 

 

 

Some

161223

 

 

 

Only a few

242229

 

 

 

Almost none

374032

 

 

 

All (vol.)

--1

 

 

 

None (vol.)

8103

 

 

 

Unsure

672


The most noteworthy aspect of the poll, I thought, was that nearly two-thirds of
the non-whites said that none, almost none, or only a few police were prejudiced.

Truth Matters

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David A. Lieb and Holbrook Mohr have this story for AP, headlined, "For some, location of Brown's hands irrelevant."

The word spread within minutes of Michael Brown's death -- a young black man with his hands raised in surrender had just been shot by a white cop.

Soon, "Hands Up. Don't Shoot!" became a rallying cry for protesters in the streets of this St. Louis suburb and a symbol nationwide of racial inequality for those who believe that minorities are too often the targets of overzealous police.

Yet the witness accounts contained in thousands of pages of grand jury documents reviewed by The Associated Press show many variations about whether Brown's hands were actually raised -- and if so, how high.

To some, it doesn't matter whether Brown's hands literally were raised, because his death has come to symbolize a much bigger movement.
I disagree.  Truth always matters, but especially when the goal is to cure or at least ameliorate a pathological condition, whether medical or social.

Heroism and Pride in Ferguson

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This Reuters story is by far the most heartening I have seen coming out of Ferguson. Here's an excerpt:

On Tuesday night, as police and soldiers took up positions in the parking lots of virtually every strip mall and big box store around it, the forecourt of the brightly lit [Ferguson Conoco] gas station was busy with customers.

One, a six feet, eight-inch tall man named Derrick Jordan - "Stretch," as friends call him - whisked an AR-15 assault rifle out from a pickup truck parked near the entrance.

Jordan, 37, was one of four black Ferguson residents who spent Tuesday night planted in front of the store, pistols tucked into their waistbands, waiting to ward off looters or catch shoplifters.

Jordan and the others guarding the gas station are all black. The station's owner is white.

Open carry laws and some heroic African American men make for a wonderful kickoff to Thanksgiving.

Heather Wilhelm has this article at Real Clear Politics with the above title (minus the bracketed part).  She pokes some fun at several articles that suggest you really should debate politics, religion, and hot-button social issues on this holiday with relatives who disagree with you.

For those of us who prefer the "or not" option, including myself and Ms. Wilhelm, the answer is to do the opposite.  Tomorrow, let us forget politics, crime and punishment, and other heated issues and enjoy the day with our families.  Give thanks - with the "to whom" broad enough to accommodate everyone at your home - and have a joyous holiday.

The Price of Accommodating the Mob

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From the Washington Post, on the day before Thanksgiving (emphasis added):

Even in the best of times, survival rates for small businesses don't inspire loads of confidence. Fifty percent of them close after four years.

But Natalie DuBose of Ferguson, Mo., did not open her shop in the best of times. She opened Natalie's Cakes and More in downtown Ferguson in June. In August, police officer Darren Wilson, who is white, shot and killed an unarmed black teenager, Michael Brown.

The city erupted.

DuBose's customer base evaporated. She went two weeks without a single person walking into her shop, she told local media. Then things turned around. After interviews with local radio and television stations, her community turned out to support her business.

"By the time I got back from [local radio station] KMOX, I had people outside the door," she told the St. Louis Post-Dispatch. What's more, they kept coming. The single mother of two, who raised the funds to open her shop by selling her cakes at a flea market, could breathe a little easier.

Then, this week, DuBose was faced with another crisis. After news broke that a grand jury would not charge Wilson, rioters broke the glass of her storefront Monday night. They damaged baking equipment.


Meet Natalie DuBose of Ferguson. Her cake store just went up in smoke for some social justice. Finally, they're taking the fight right to the heart of the problem, people who make and sell pastries.

Trayvon and Mike

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The title of this post is taken from a Powerline entry by my friend John Hinderaker. His short essay ends with these words (emphasis in original):

[In the name of the welfare state narrative], Michael Brown and Trayvon Martin have to be victims, not aggressors.

Still, the truth is that they were victims. Not victims of a mythical white power structure-the concept is laughable as applied to either [the Walter Mitty-like] George Zimmerman or Darren Wilson. And certainly not victims of a racist judicial system. On the contrary, in both cases America's court system rendered the right verdict under tremendous pressure to bend the truth to political expedience.

Rather, Martin and Brown were victims of an African-American culture in which the family has been pretty much destroyed, government checks have largely replaced employment, education is disparaged, criminality is respected, and racial animosity is a sign of authenticity. That culture...has been an utter disaster for millions of young black men like Trayvon Martin and Michael Brown.

Ferguson Video

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A remarkable video of the reaction by some of the good people of Ferguson to the Grand Jury decision not to indict a police officer for the fatal shooting of a 6 ft.4in 290 lb. thug who attacked him.  The breakdown in values evidenced by this carnage can be traced back to President Lyndon Johnson's "war on poverty," which financed the demise of the nuclear black family, essentially paying black women to have out-of-wedlock children and creating a culture of dependence.  In 1965, 24% of black children were born to unwed mothers.  Today it's 70%.  An entire segment of our population has been trained not to take responsibility for virtually anything they do, up to and including attacking an armed police officer.  The crowds on this video are made up of people left stupid by liberal public education policies that excuse failure and discourage excellence and an accompanying cultural breakdown that celebrates gangsters, vulgarity and revenge.  The folks in Ferguson who live outside of that culture can thank Al Sharpton, Jesse Jackson, Barack Obama, and Eric Holder for fanning the fires of racial division. 

Racism, the All Purpose Excuse

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Time has an opinion piece titled, "Ferguson: In Defense of Rioting."  Its closing paragraph reads:

Instead of tearing down other human beings who are acting upon decades of pent-up anger at a system decidedly against them, a system that has told them they are less than human for years, we ought to be reaching out to help them regain the humanity they lost, not when a few set fire to the buildings in Ferguson, but when they were born the wrong color in the post-racial America.

I won't go into the obvious difficulties with riots.  I want to make only one point  -- that the Ferguson riot had next to nothing to do with the expression of dissent, about racial issues or any other.

You don't smash the store windows of private businesses and rush in to gobble up bunches of sweatshirts and sneakers and video games because you've got a political grievance.  You do it because it's neat, it's exhilarating, and most of all, because you can  --  because a weak, self-flagellating culture has handed you an excuse; because the cops are too intimidated by "militarization" talk to do anything; and because, just to be clear, stealing stuff is easier than buying it.
This article in the Georgetown student newspaper, written by a student who "understands" why he was mugged, is a parody.

I mean, it is a parody, right?

Will someone tell me it's a parody?

Please???


The Other Ferguson Tragedy

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Jason Riley has this column in the WSJ:

Racial profiling and tensions between the police and poor black communities are real problems, but these are effects rather than causes, and they can't be addressed without also addressing the extraordinarily high rates of black criminal behavior--yet such discussion remains taboo. Blacks who bring it up are sell-outs. Whites who mention it are racists. (Mr. Dyson accused Mr. Giuliani of "white supremacy.") But so long as young black men are responsible for an outsize portion of violent crime, they will be viewed suspiciously by law enforcement and fellow citizens of all races.
Jesse Washington reports for AP:

Anger and despair swept through many parts of America after a Missouri grand jury decided not to indict Darren Wilson, a white police officer, for killing Michael Brown, a black 18-year-old.

What was behind the wave of emotion? Why do so many refuse to accept the grand jurors' choice not to charge the cop with a crime in the death of Brown, who was unarmed? Why is there such disregard for the new evidence released with the decision?

*                               *                            *

Texas CCA Denies Panetti Stay

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Continuing with the Panetti story (see previous post), the Texas Court of Criminal Appeals denied a stay 5-4, finding it had no jurisdiction.  Jim Malewitz has this story in the Texas Tribune, with links to the opinions.

Panetti's previous competency determination was in 2008.  The delay after that point was in litigating Panetti's claim that his "rights" under Indiana v. Edwards had been violated, i.e., that the Texas courts failed to anticipate the Supreme Court's correction of its own error and instead followed the precedents binding on them at the time.  (See comment to the previous post.)  Of course, Edwards didn't create any rights.  It only put a sensible limit on the right created out of whole cloth in Faretta.

So the trial court set an execution date on October 16, 2014, and counsel for Panetti filed their motion nearly a month later, less than 20 days before the execution.  Texas has an anti-last-minute statute limiting jurisdiction in the last 20 days.  No dice, say the majority.

These kinds of time limit laws can be harsh, but the unscrupulous tactics of the defense side has made them necessary.  Filing claims at the last minute that could have been made earlier and then demanding a stay to give the courts time to adjudicate them has long been a key tool in the obstructionist's toolbox.  See, e.g., Gomez v. U.S. District Court (Harris), 503 U.S. 653 (1992).

The "Lesson of Ferguson"

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We're being lectured all over the place about "the lesson of Ferguson."  Generally the "lesson" is some variant on the theme that the cops are Nazis (libertarian version) or racists (liberal version).

I have my own "lesson of Ferguson" to offer.  It is literally a lesson, one that Michael Brown's parents might have found useful to drive home about ten years ago:

Michael, we love you enough to want, and demand, that you grow up straight. We know you stole your classmate's apple.  It's wrong to steal. You need to learn this, immediately and permanently.  You're grounded for a week, and you will have extra chores, which you will do without hesitation or complaint. We also know that when your teacher asked you about it, you smartmouthed and walked away. That is not acceptable.  You are at all times to respect and obey proper authority.  You are grounded for an additional two weeks. Any further episodes of stealing or disrespecting authority will result in more punishment until you wise up.

And then they needed to make it stick.

If they had, Michael Brown would be alive today, many stores in Ferguson would not have been looted, and Darren Wilson would still have a career. 

News Scan

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Victim's Family Outraged Over Murderer's Release: A Kentucky family is left feeling angry and confused after the man who murdered their family member 13 years ago was released from state custody without their knowledge.  Ann Bowden of WLKY News reports that convicted killer Shawn Patterson was released from prison under House Bill 463, a law that allows both non-violent and violent offenders to be released from custody early in an effort to save the state money.  Since the law was passed in 2012, 10,000 inmates have been released ahead of schedule and placed on 'mandatory re-entry supervision.'

Arkansas to Address Prison Overcrowding: Lawmakers in Arkansas are looking at several different ways to address prison overcrowding including the use of private prison facilities and the implementation of alternative sentencing programs.  Andrew DeMillo of the Associated Press reports that more than 2,000 inmates have been moved from prison to county jails, and plans to build a new facility are estimated at costing upward of $100 million.  The legislature is also suggesting expanding the use of drug courts and using abandoned school buildings to house inmates.

Accused Killer has Lengthy Criminal Past: The Colorado man accused of kidnap and murder of a single mother in 2007 has a lengthy criminal past, including multiple arrests for abducting women.  CBS News reports that 63-year-old Lester Jones was arrested in 1999 after authorities say he forced his wife into his car and threatened to kill her.  Later that month, he was arrested again for abducting another woman and sexually assaulting her.  Jones is facing charges of kidnapping, murder, and arson.  He is being held in jail on $2 million bond.

Some readers have told me by email that they tried to register at ABA Journal to vote for their favorite blog (which I hope and presume was this one) but were told that their registration was suspected spam and was discarded.  After several email exchanges with the editors, that problem appears to be fixed.

So here is the link again.  Of course I wouldn't be so crass as to ask you to ... sure I would!  Vote for C&C!

Facebook Threats Argument Next Week

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Elonis v. United States, the Facebook threats case, will be argued next week.  We filed our brief last October, and I wrote this post the same day.

Amy Howe has this "plain English" post on the case at SCOTUSblog.  She noted it is unlikely that the Justices are much familiar with Facebook and wonders if that will affect the case.  It shouldn't, in my opinion.  The definition of a prohibited threat should not vary with the medium.  The fact that people rant all the time on the internet does not warrant extending First Amendment protection when rant crosses the line to threats. 

A couple of amicus briefs supporting Elonis take the position, in essence, that the routine debasement of speech in our society in media such as online posting and gangsta rap are a reason to take a more expansive view of First Amendment protection of threats.  If this downward spiral of our society has any effect at all on the decision, it should be in the other direction, in my opinion.  We have gone way too far in letting it all hang out and need to tuck some of it back in.

A good example of the ill effects of extreme disinhibition is SCOTUSblog itself.  That blog used to have comments, and I enjoyed commenting there, exchanging views with thoughtful, intelligent, informed people, many of whom disagreed with me.  But the comment section turned into a cesspool, as the comments of so many blogs do.  They tried requiring people to use their real names, and that helped but not enough.  Finally they axed the comments altogether because they dragged down the quality of the blog.  The rudeness of a few ruined the medium for those of us who wanted to exchange views at a refined level.

Perceptions and Realities of Injustice

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The pattern is becoming all too familiar.  There is a claim of a gross injustice with inflammatory allegations.  Then there is a media firestorm.  When a full investigation reveals the actual facts, there has been no injustice, yet a substantial segment of the population will continue to believe there was, continuing to believe the original, discredited, inflammatory allegations.

First Troy Davis, then Trayvon Martin, now Michael Brown.  Different cases, different underlying facts, but the same overall pattern.

No, Michael Brown was not shot in the back.  The autopsy conclusively refutes that allegation.  Yet the witnesses who claimed to have seen that still said it, and maybe they really believed it, as explained in this article in the WaPo.

These incidents have a deep, corrosive effect on our society.  They add to polarization and alienation.  What can be done?  Well for starters, all of us, but especially those in the media, need to be a bit less prone to jumping on claims such as the ones made in these cases.  Lets get the real facts first.

ABA Journal Blawg 100

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The ABA Journal has its annual list of the 100 best law blogs.  You can register and vote for your favorites.

No Indictment in Ferguson, and the Reaction

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The grand jury in Ferguson declined to indict Officer Darren Wilson in the shooting death of Michael Brown.

What I want to comment upon just now is the Brown family statement responding to the no-bill.  It reads in part as follows:

We are profoundly disappointed that the killer of our child will not face the consequence of his actions.  While we understand that many others share our pain, we ask that you channel your frustration in ways that will make a positive change. We need to work together to fix the system that allowed this to happen.

The principal factor in "the system that allowed [the no-bill] to happen" is the law of self-defense. That law has been around mostly unchanged for about a thousand years.  It sparks almost no controversy and has nothing to do with race.

That the grand jury concluded that Officer Wilson did not act criminally does not change the grief of losing a teenage son.    
Continuing with the theme of Bill's post, the State of Texas has scheduled the execution next week of Scott Panetti for the 1995 murder of his wife's parents.  The editorial board of the New York Times can't help themselves.  Even when their position is basically a reasonable one, they still have to make absurd statements in the process.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was "scary" and "trance-like," and called the trial "a judicial farce."
The word "inexplicably" is just plain ignorant.  There is no mystery at all as to why Panetti was allowed to represent himself or who was to blame.  The blame lies squarely with the United States Supreme Court in the 1970s and its propensity at that time to make up rights that are not really in the Constitution.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court said that criminal defendants have a constitutional right to reject counsel and conduct their own defense.  Justice Blackmun noted in dissent, "If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself."  In Panetti's case, make that a crazy fool.

The Faretta rule was long understood to be absolute in most jurisdictions, including Texas and the Fifth Circuit.  As long as the defendant was competent to stand trial, a very minimal standard, he had the constitutional right to represent himself, no matter how much of a farce he made of the trial.  If the trial court denied him that dubious right, the judgment would be reversed on appeal or overturned on habeas corpus.  The Texas trial judge was therefore correct, in the sense of following the precedents of both the state and federal courts, in allowing Panetti to represent himself.  In Indiana v. Edwards, 554 U.S. 164 (2008), we finally got the Court to modify Faretta and recognize that some people are competent to stand trial and assist counsel but not to be their own counsel, see CJLF brief, but 33 years had elapsed and a lot of water had passed under the bridge.

The issue in the courts now, though, is not Panetti's representation at trial but rather whether he is presently too crazy to execute. 

Who Will Be Rioting?

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It's widely anticipated that there will be a riot tonight if the Ferguson grand jury does not indict Darren Wilson.

There is one question about this I haven't heard asked a single time:  Who will be rioting?

The reason I haven't heard it is that it's Politically Very Incorrect to ask.  That's because the answer is unappetizing.  The rioters will be black.

If, contrary to expectations, there is an indictment, does anyone think whites will be taking to the streets and smashing shop windows?  No.  The Unmentionable Fact is that the media uniformly, and correctly, assume there will be a riot only if the grand jury does not indict, and that blacks will be doing it.

Eric Holder once and famously said that the American people are a bunch of cowards for refusing to discuss race.  The unasked question about Ferguson has proved him right, albeit not in the way he expected.

Ineffective Assistance of Thomas Jefferson

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Most claims of ineffective assistance of counsel are baloney.  They're simply a way to deflect attention from the client's behavior to that of his supposedly all-important lawyer.  What gets lost in the hubbub is that what wins and loses cases is seldom the lawyer.  It's the evidence.

Still, there are exceptions.

News Scan

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CA Jury Recommends Death for Convicted Killer: A California jury has recommended that a man convicted of murdering his ex-girlfriend in front of her children in 2011 be put to death.  The Associated Press reports that 41-year-old Tyrone Harts broke into the woman's home and shot her to death in front of her children before lighting her body on fire.  A judge will make the final sentencing decision on January 30, 2015.

DHS Unveils New Immigration Guidlines: The Department of Homeland Security has released its new guidelines for immigration and border security officers outlining top deportation priorities, and shockingly, drug dealers and gun offenders aren't at the top of the list.  Byron York of the Washington Examiner reports that convicted drunk drivers, sex abusers, and drug dealers are considered as second-level enforcement priorities.  This level also includes illegal aliens who have been convicted of at least three misdemeanors.  Priority One is considered to be the highest level of enforcement, and includes convicted felons and suspected terrorists. 

Execution Date Set For Convicted Killer: Pennsylvania Governor Tom Corbett has signed an death warrant for rapper and convicted cop killer Christopher Roney, scheduling his execution for January 8, 2015.  The Associated Press reports that Roney shot and killed the officer in 1996 after a botched bank robbery.  The governor also authorized executions for two more convicted murderers.  These executions will take place January 13 and 15.

How A Bill Becomes Law, Revised

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Saturday Night Live updates a Schoolhouse Rock civics classic.

Confrontation, Hearsay, and Child Abuse

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"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...."  So says the Sixth Amendment to the United States Constitution, as do the bills of rights of many state constitutions.  But what does that mean?

From at least 1980, when the U.S. Supreme Court decided Ohio v. Roberts, until 2004, when it decided Crawford v. Washington, the Confrontation Clause was pretty much a constitutionalization of the hearsay rule.  If the prosecution wanted A to testify as to what B said, the defendant had a right to confront and cross-examine B, subject to all the "firmly rooted hearsay exception[s]," and there are a lot of them.  The main consideration was deciding whether the particular form of hearsay was reliable.

In Crawford, the Supreme Court tossed the Roberts rule and its reliability focus overboard and went with a historical analysis instead.  The purpose of the Confrontation Clause is to prevent abuses of the kind that happened in the trial of Sir Walter Raleigh (the founder of Anglo-America) and other old English cases where testimony is introduced in the form of affidavits or examinations of a witness conducted ex parte, i.e., when the defendant is not present and can't cross-examine.  In circumstances like these, the examinee is the "witness" and the statement is "testimonial."  The Confrontation Clause forbids introduction, and there are no exceptions.  In other cases of garden-variety hearsay, A is the "witness," and admissibility of B's statement is a matter for state hearsay rules, not the U.S. Constitution.  In a state case, reliability of the hearsay is an issue for state rulemakers and courts to ponder, not the federal courts.

Okay, but what statements are sufficiently like the forbidden historical practices to make B's statement "testimonial" and make B and not A the "witness" for this purpose.  The Crawford Court left that largely for future decisions, a recipe for chaos.

How about an injured preschooler's response to a teacher's question, "Who did this? What happened to you?"  That is the question before the Supreme Court in Ohio v. Clark, No. 13-1352.

News Scan

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Parolee Accused of Murder: An Indiana parolee with a lengthy criminal past has been arrested and charged with the murder of a 15-year-old girl.  Robert King and Jill Disis of Indy Star report that 46-year-old William Gholston has been arrested more than 30 times on a variety of crimes including robbery, battery, and cocaine possession.  He was released on parole in November 2012 after serving 6 ½ years on a gun charge.  Fifteen-year-old Dominique Allen's burned body was found just hours after her family reported her missing in August.  Police were able to link Gholston to the killing with DNA evidence collected from the victim's body.

Georgia Sets Execution Date for Murderer: A Georgia man convicted of murdering a Sheriff's deputy nearly 20 years ago is scheduled to be executed on December 9, 2014.  R. Loyd Price of WMAZ News reports that after Robert Holsey robbed a convenience store in December 1995, a sheriff's deputy spotted his car and pulled him over.  Holsey shot the deputy was shot in the head as he approached the vehicle.  He has appealed his conviction unsuccessfully several times over the last 16 years.

Violent Felons Legally Buying Guns in Washington State:  An investigation conducted by Washington television station has found that a number of violent felons have been legally purchasing guns in several counties despite laws to prevent that from happening.  Monique Ming Laven of KIRO News reports that under state law, felons are eligible to have their gun rights restored as long as they were not convicted or a serious crime or a sex offense, received a sentence of more than 20 years, and have not re-offended in five years.  The investigation revealed that since 2010, at least 3,000 serious felons have had their gun rights restored.   

The Coming Riot

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The conventional wisdom is that the grand jury's decision about the Ferguson shooting will soon be known, and that it will not indict Officer Darren Wilson.

I have no inside scoop on this.  My (pure) guess is that the conventional wisdom is correct; it usually is.  If so, I'll predict here and now that there's going to be a riot.  I will also give my predicted reactions when it happens.

From libertarians:  The police are an over-militarized menace just short of the SS.

From Mother Jones:  The United States continues to be a rancid racist cesspool.

From Al Sharpton:  People need to listen to me.  (This was the easiest one).

From Eric Holder:  I told you we're a bunch of cowards.

From Rachel Maddow:  [Head explodes].

From me:  ...once upon a time, I heard about due process and the presumption of innocence....


AG Confirmation for Next Congress

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Almost unnoticed in a busy week was a nugget dropped by Senate Majority (for five more weeks) Leader Harry Reid.  Michael Crittenden reported Tuesday in the WSJ:

The White House has said it is ready to wait until next year for Congress to consider its nominee to be the next attorney general, the top Senate Democrat said Tuesday.

Senate Majority Leader Harry Reid (D., Nev.) said the White House has told him the confirmation hearings of veteran prosecutor Loretta Lynch could be dealt with in the new Congress in January 2015.

"The White House through intermediaries with me have said 'don't be pushing that, we can do that after the first of the year,' " Mr. Reid said after senators' weekly caucus lunches.
"After the first of the year" means next Congress, assuming Senator Reid does not intend to hold a vote on Friday, January 2, which I very much doubt.  Chuck Grassley will begin his stint as chairman with a very important hearing.

Securing, not sealing, the border

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The Sacramento Bee has this story about President Obama's actions on immigration yesterday.  The article quotes CJLF President Michael Rushford regarding aliens who commit crimes.

The article says CJLF "advocates sealing the U.S.-Mexico border."  Um, no.  We are in favor of having a secure border so that criminals we deport can't just waltz back in.  Questions of how much and what kind of legal immigration we should allow and what kind of trade restrictions we should have are not our field, and we take no position.  We would certainly never advocate the complete cut-off implied by the word "sealing."
Whether President Obama has the authority to allow the effective nullification of our immigration statutes through executive order is an interesting subject, about which I may have more to say later.  But the immediate implication is clear: Obama, toward the end of his term and perhaps before, is going to put thousands of dangerous hard drug dealers back on the street.  He'll do this via executive clemency.

The clemency program has already been announced by DOJ, but until last night, there were realistic questions about how far it would reach.  Those questions are now answered.  There will be no effective limit whatever.

Nullification through "discretionary" non-enforcement of law is of debatable legality, but the clemency power is not.  It exists, and belongs to the President alone.

There was a glimmer of hope until last night that the President would be restrained in exercising this power, and would pay at least some heed to the idea that hard drug trafficking harms America.  That is over with.  When a President openly and aggressively sympathetic to lawbreakers is willing to use a power that may be there or may not, there is no question left about his willingness to use a power that actually is there.

We saw last night what Obama will do now that he has no political accountability left. But what we saw is only the beginning.

FedSoc Convention Videos

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Bill previously posted a link to the Criminal Law Practice Group's panel at the National Lawyer's Convention of the Federalist Society.  Another panel relevant to the topic of this blog was the Civil Rights Practice Group's panel on sexual assault on campus.  The speakers and video links for both panels follow the break.

The full schedule with links to all the videos is here.

News Scan

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Vicious Killer Released from Prison: A California family is outraged after the man who violently killed their loved one was released from prison last week by a Fresno County judge.  Pablo Lopez of the Fresno Bee reports that in 1984, Theodore LeLeaux Jr. stabbed his coworker Kenneth Carlock 77 times in his apartment before cutting the man's heart out and carrying it around in his coat pocket, LeLeaux pleaded guilty to second-degree murder the following year and was sentenced to 16 years to life in prison.  Despite a denial of parole by Governor Brown, the state parole board chose to release LeLeaux after determining he was no longer a 'danger to society.'

Accused Killer on Bail Charged With New Murder: A North Carolina man who was out on bond while awaiting his upcoming murder trial has been arrested for murdering a man that was scheduled to testify against him.  WCTI News reports that 36-year-old Nashid Porter's murder trial for killing a man in 2012 was to start in January 2015.  Porter was released to await trial on house arrest, and required to wear a GPS monitoring device-a device.  Authorities say he cut the device off the night he allegedly killed his most recent victim.  Porter is currently being held in jail without bond.   

Utah Passes Death Penalty Bill: The Utah legislature has passed a bill that would allow the state to execute condemned murderers by firing squad.  The United Press International reports that states with active death penalties began running out of lethal injection drugs after European drug manufacturers restricted their use for executions.  Under the new law, Utah will still use lethal injection as its primary method of execution, however, if the drugs become unavailable a firing squad may be used.  

Alexandra Petri's column in the WaPo is advertised as "a lighter take on the news and political in(s)anity of the day."  Today, though, she offers a serious and thoughtful look at an important question.
The record is now well established that if we are going to conduct executions by lethal injection, pentobarbital is the drug of choice.  That is the drug veterinarians use for animal euthanasia every day.

The manufacturer of pentobarbital has cut off the usual supply chain for obtaining it.  As discussed in this article by James Gibson and Corinna Lain forthcoming in Georgetown Law Journal, European governments are instigators of the shortage, interfering in a domestic policy choice of the United States that is quite simply none of their damn business.

The workaround is compounding pharmacies.  However, those pharmacies have been subject to harassment that makes them unwilling to supply the needed drug.  As noted in this post in September, the anti-death-penalty movement is responsible for the problematic executions carried out with other drugs when they made pentobarbital unavailable.

The Ohio Legislature is now moving forward, in HB 663, to extend confidentiality to suppliers of execution drugs.  The bill also prohibits any disciplinary action against doctors who provide the state with consultation on how avoid pain during an execution, which has been a problem.  The legislation declares contractual restraints on resale to be "void and unenforceable as against public policy."

Jeremy Pelzer had this article on the legislation last week on cleveland.com (site of the Plain Dealer).  He also has a follow-up article today on claims the legislation is unconstitutional.  Most of these claims are meritless, in my opinion.  Our friend Doug Berman from SL&P "said he believes HB 663 is 'probably' constitutional, but he questioned whether it would be better for Ohio to instead look at other methods of execution besides lethal injection."

A legislative analysis of the bill notes, "To the extent that the bill's provision voiding contracts applies to contracts entered into before the bill's effective date, it might be found to violate the clauses of the U.S. and Ohio Constitutions that prohibit the General Assembly from passing laws that impair contractual obligations."  True, but application to contracts made or renewed henceforth is worthwhile.  What we really need is for Congress to enact a law like this.  The Contract Clause only applies to states.

News Scan

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PA Murderer Sentenced to Death: A Pennsylvania man convicted of murdering a woman and dismembering her body in 2008 has been sentenced to death.  WNEP News reports that Charles Hicks killed the woman and placed her body parts in several trash bags before scattering her remains along highways in two different counties.  Investigators have also revealed that after his conviction, Hicks admitted to killing at least five more women in Texas.  Police are taking the claim seriously and plan to investigate the possible murders. 

 Another Parolee Accused of Murder: Police in New York say the person accused of fatally pushing a man in front of a moving subway train last week has a lengthy criminal history and was recently released on parole.  Fox News reports that 34-year-old Kevin Darden has been arrested dozens of times for a variety of charges including assault and robbery, his most recent arrest came just 7 days prior to killing the man at the subway station.  Darden is currently being held in county jail without bond.

Ohio Bill Seeks Death Penalty Reform: A new bill heading to the Ohio legislature would grant anonymity to drug makers who supply execution drugs to correctional facilities.  Idea Stream reports that Ohio Attorney General Mike DeWine halted executions out of concern for the safety of those who make and sell execution drugs.  The bill would allow secrecy for both the pharmaceutical companies involved as well as what drugs were being used for lethal injections.  The author of the bill, State Representative Jim Buchy, wants to address all of the Attorney General's concerns and is confident the bill will pass by the end of the year.

Sheriff Asks Obama to Address Crime by Illegals:  In a video appeal released yesterday, Sacramento County Sheriff Scott Jones told President Obama that America's failed immigration policy and lack of border security are allowing deported criminals to cross the U.S. border to commit more crimes.  Noting that last month, an illegal with a long criminal record who had twice been deported shot and killed a Sacramento Deputy and a Placer County officer during a day-long crime spree, the Sheriff fixed responsibility for the failure or success of U.S. immigration policy with the President.  He urged the President to take immediate steps to secure the border, and implement immigration reforms that allow law enforcement to tell the  good guys from the bad guys. 
A number of people have asked me to post the script of my remarks at the Federalist Society's National Convention last week.  I am happy to do so below:


Two facts about crime and sentencing dwarf everything else we have learned over the past 50 years:  When we have more prison we have less crime, and when we have less prison, we have more crime.


A Well Heeled Race Hustler

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The New York Times, of all things, has a long and revealing article about the financial shenanigans of the Reverend Al Sharpton.  Why this article appears only in the New York/Region section of the NYT is a mystery, since Rev. Sharpton is a national figure to say the least (I have written about him and his escapades many times before, e.g., here, here and here).

The short of it is that Big Al (well, not so big anymore; he's slimmed down remarkably from the days of the Tawana Brawley hoax) seems to have accumulated a lot of dough, even while not being too keen on paying taxes or other debts.

By the way, I thought this paragraph particularly interesting:

Behind the scenes, he has consulted with the mayor and the president on matters of race and civil rights and even the occasional high-level appointment. He was among a small group at the White House when Mr. Obama announced his nomination of Loretta E. Lynch, the United States attorney for the Eastern District of New York, to become the next attorney general.

My goodness.  I wonder whether Rev. Al knows something about Ms. Lynch that the rest of us should be interested in finding out about.

UPDATE:  A respected journalist has objected to my snarky phrase, "...of all things..."  He points out that the NYT has done articles that exposed then-Gov. Spitzer, and Congressman Charlie Rangel's tax and apartment issues.  While it is certainly true that the NYT is a (if not the) leading journalistic organ for the Left, it has indeed done some excellent investigative work not flattering to Democrats.  I don't know that I'd call my characterization of the Times a cheap shot, but it wasn't the most expensive one either. I regret any offense it might have given to the numerous call-it-as-you-see-it reporters at the Times.

Underreporting of Crime

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Last week I had this post on the Uniform Crime Reports, and a commenter noted that skepticism was in order due to underreporting by some police departments.  Across the pond there appears to be a major kerfuffle on this point.  David Barrett reports in the Telegraph:

Almost a million crimes a year are disappearing from official figures as chief constables attempt to meet targets, a study by the police watchdog has disclosed.

Its report exposed "indefensible" failures by forces to record crime accurately, and said that in some areas up to a third of crimes are being struck out of official records.

Her Majesty's Inspectorate of Constabulary said violent crimes and sex attacks were particularly vulnerable to being deleted under "inexcusably poor" systems.

Although the report stopped short of accusing police of widespread "fiddling" it said there was an "undercurrent of pressure not to record a crime across some forces" and "wrongful pressure" by managers.

It means violent criminals and even rapists are not investigated, potentially allowing offenders to strike again.
Today the Ninth Circuit decided Doe v. Harris, No. 13-15263.  The opinion by Judge Bybee begins:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation ("CASE") Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide "[a] list of any and all Internet identifiers established or used by the person" and "[a] list of any and all Internet service providers used by the person." Id. § 290.015(a)(4)-(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider ("ISP"). Id. § 290.014(b). Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.

News Scan

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Paroled Murderer Accused of Killing Again: A Missouri man released after serving 17 years of a life term for murdering his wife and another man has been charged with killing his ex-girlfriend last week.  The Associated Press reports that 63-year-old Harry Little Sr. was sentenced to life in prison in 1978 on two counts of second-degree murder.  Court documents reveal he was released on parole in 1995.  Little is facing charges of first-degree murder and is being held in jail without bond.

Missouri Murderer to be Executed Wednesday: A Missouri man convicted of murdering a gas station attendant during a robbery attempt two decades ago is scheduled to be put to death at 12:01 a.m. Wednesday.  The Associated Press reports that attorneys for Leon Taylor have asked Governor Jay Nixon for a stay of execution based on claims of racial prejudice during his sentence, but the governor has shown no sign of halting the execution.  If Taylor is executed, he will be the ninth person executed by the state of Missouri this year.   

Convicted Double-Murderer Sentenced to LWOP: A California man has been sentenced to life in prison without the possibility of parole after he was found guilty of killing two USC students from China.  Marisa Gerber of the Los Angeles Times reports that 22-year-old Javier Bolden approached the two students as they sat in their car in hopes of stealing their money.  After his arrest, Bolden was recorded bragging about shooting the two victims to his cellmate who happened to be an undercover police informant.  Bolden's co-defendant pled guilty to two counts of first-degree murder for the killings and was also sentenced to life without parole.

Maintenance

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The blog may be unavailable or unresponsive at times late at night and early in the morning this week, as our host does system maintenance.  Outages are not expected to last more than 45 minutes.  Potentially affected hours are midnight - 5 a.m. EST (9 p.m. - 2 a.m. PST).

News Scan

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Kidnapping Suspect Released Under Prop 47: A California man who was arrested last week on burglary charges and released back into the community just hours later under the newly passed Proposition 47 is behind bars for the attempted abduction of a 13-year-old girl.  Jory Rand of ABC Los Angeles reports that 39-year-old Guillermo Ceniceros was arrested Tuesday for commercial burglary-- a charge that prior to Prop. 47's passing would have required that he be held for trial or post bail.  But, because Prop. 47 redefined the burglary as a misdemeanor, he was released on the day of his arrest.  He was rearrested less than 24 hours later for the attempted abduction.  Ceniceros has been charged with five felonies, including attempted kidnapping and attempted aggravated sexual assault of a child.  

Execution Date Set for Murderer: A South Dakota criminal convicted of murdering a corrections officer is scheduled to be executed during the first week of May 2015.  KOTA News reports that Rodney Berget, who was already serving a life sentence for attempted rape and murder, killed the officer during a botched prison escape in February 2012.  The two other inmates who attempted to escape with Berget were also charged with the officer's murder.  One has already been executed for the crime and the other is serving a life sentence.

Accused Cop Killers Won't Face Death Penalty: The four men accused of murdering a Virginia police officer earlier this year will no longer face a possible death sentence after Attorney General Eric Holder took the death penalty off the table.  CBS News reports that the four men, all known gang members with extensive criminal pasts, allegedly carjacked, kidnapped, and killed the officer and abandoned his body a few counties away.  The men now face a maximum sentence of life without parole.
"My client did not help those guys commit the robberies, and besides that he only helped because they forced him."

In Joshua Frost's trial for robbery, his lawyer wasn't that blatant, but he did want to argue that Frost was not an accomplice and alternatively qualified for the defense of duress.  The trial judge would not let him argue that, based on a Washington Supreme Court opinion saying that a defendant must admit the elements before asserting a duress defense.  The Washington Court of Appeals affirmed.  The Washington Supreme Court clarified that its precedent was not that strict and the argument should have been allowed.*  However, a majority of that court concluded that this type of error is subject to "harmless error" review, and based on its review of the evidence there was no effect on the outcome of the trial.

On federal habeas corpus, the magistrate judge, the district judge, and a majority of the initial 3-judge court of appeals panel agreed that this type of error is one of the great many subject to harmless error review, not one of the select few "structural" errors reversible without such consideration.

The Ninth Circuit granted rehearing en banc, and a bare majority (6-5) found that the state court's decision that this error is not structural was an unreasonable application of clearly established Federal law.  Finding state court decisions "unreasonable" when the Ninth merely disagrees with them on debatable points is something that court has been reversed for by the Supreme Court time and time and time again.  They never learn.  Today we chalk up yet one more in Glebe v. Frost, No. 14-95 (per curiam).  As in White v. Woodall, decided last term, the federal appeals court stretched existing Supreme Court precedent into new territory, and reasonable judges can disagree as to whether it should be extended there. There is no dissent.

Why It's Important to Vote

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Col. Martha McSally, USAF (Ret.) is the new Representative from Arizona District 2, in the southeast corner of the state, including much of Tucson.  Or maybe not. The final tally showed her 161 votes ahead of incumbent Rep. Ron Barber.  State law requires a recount.  Andrea Kelly has this story at Arizona Public Media.

Meanwhile, in CJLF's backyard in Sacramento County, incumbent Rep. Ami Bera has a 697 vote lead over challenger Doug Ose.  So far.  News 10 KXTV has this story.
At its National Convention just concluded, the Federalist Society sponsored a panel discussion among conservatives on sentencing reform.  It was an excellent group featuring John Malcolm of the Heritage Foundation and Marc Levin from Right on Crime, and  --  expressing a more skeptical view  --  Judge and former Attorney General Michael Mukasey, and yours truly.  The moderator was Judge Bill Pryor of the Eleventh Circuit.

It was pretty much a packed room.  Among the audience members was none other than C&C's leading light, Kent Scheidegger.

I'm grateful to the Federalist Society for sponsoring this important give-and-take and for being included among such experts.

A tape of the event is here.  (For those interested, I start at about the 35:00 minute mark).

News Scan

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Murder Suspect Was Set Free by Prop. 36: A habitual felon with a prior murder conviction is the prime suspect for last week's murder of an Air Force Reservist and mother of two.  Marin Austin of Fox 40 reports that Moses Valdez was sentenced to 18 years behind bars for voluntary manslaughter in 1993, but was paroled prior to completing his sentence.  In 2011, Valdez was arrested again for running from police which constituted his third strike, resulting in an automatic 25-year-sentence.   The following year, California voters passed Prop 36, which abolished the third strike sentence for a non-violent felony, allowing Valdez to be released from prison once again.  Police have yet to locate Valdez, and consider him to be armed and dangerous. 

Two Suspects Convicted in Cop Killing:  Two of the four men accused of murdering a Chicago police officer in 2010 have been found guilty of first-degree murder.  The Associated Press reports that the two men served as lookouts for their friends in an attempt to steal the officer's motorcycle.  The officer confronted the group and a gun-fight ensued leaving the officer and one of the suspects dead.  Both men face mandatory life sentences, the fourth suspect is still awaiting trial.

Update: Florida Executes Convicted Killer: A Florida man convicted of murdering his wife and stepdaughter 22 years ago has become the eighth person executed by the state of Florida this year.  Karl Etters of the Tallahassee Democrat reports that Florida uses a three-drug cocktail to execute prisoners.  The execution began at 7:10 p.m. and the inmate was pronounced dead 17 minutes later.  This was the 89th execution carried out by the state of Florida since the death penalty was reinstated in 1979.


News Scan

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Marijuana User Sues Company Claiming Discrimination: A Rhode Island woman is suing a textile company after they refused to hire her for a two-month internship because she regularly uses 'medicinal' marijuana.  Michelle R. Smith of the Associated Press reports that Christine Callaghan claims that she uses marijuana to treat migraine headaches.  Her attorney alleges that the company is discriminating against her client because of a medical disability and demands that she be given an equal opportunity at employment.  Rhode Island legalized marijuana for medical use in 2006, however, it is still illegal under federal law.

CA Prison Uses Dog to Find Prohibited Cell Phones: A Northern California prison is using the help of a police dog to sniff out cellphones being smuggled into the facility illegally.  William Bigelow of Breitbart reports that the dog has found more than 1,000 phones in his four years of work, most notably, he discovered a phone that had been hidden in one of three jars of peanut butter.  Smuggling a phone into prison can result in a $5,000 fine and a possible six-month sentence in jail.

FL Set to Execute Convicted Killer: A Florida man convicted of murdering his wife and 10-year-old stepdaughter 22 years ago is scheduled to be executed for his crimes Thursday evening.  The Associated Press reports that 43-year-old Chadwick Banks raped and killed the young girl just minutes after he shot her mother in the head, he was given a life sentence for his wife's murder and was sentenced to death for killing his stepdaughter.  If the execution is carried out as scheduled, Banks will become the 20th person executed in the state of Florida since Governor Rick Scott took office in 2011.

Magna Carta

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(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
This great-grandfather of the Due Process Clause was signed by King John -- at swordpoint -- almost 800 years ago, along with many other promises.  Copies of the great charter were made and sent to the various counties of England, and one of those copies, from the Lincoln Cathedral, is presently on exhibit at the Library of Congress.

Update (11/13):  Justice Scalia's opening address at the Federalist Society Convention was on Magna Carta and its importance in the development of constitutional law. 

Update 2 (11/15):  Justice Scalia's address is now available online.
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. - See more at: http://www.bl.uk/magna-carta/articles/magna-carta-english-translation#sthash.QZ07c2XJ.dpuf

News Scan

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Murderer Sentenced to Death: A Nevada man convicted of a 2009 double-murder has been sentenced to death.  David Ferrara of the Las Vegas Review-Journal reports that 29-year-old Ralph Jeremias was found guilty on two counts of first-degree murder and robbery after authorities say he shot two men execution-style.  Prosecutors argued that Jeremias killed the two men during a botched robbery attempt. 

Accused Killer Recently Placed on Probation:  A Michigan man is facing murder charges just days after a judge sentenced him to probation for assault with a deadly weapon.  Christopher Behnan of the Lansing State Journal reports that 32-year-old Rahsohn Perry is facing murder and gun charges after authorities say he shot and killed his brother during a heated confrontation late Friday evening.  Perry was sentenced to two years of probation last week after pleading guilty to an assault with a deadly weapon charge from an incident earlier this year. 

Veterans Day

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VeteransDay2014.jpgThe two primary functions of government are to protect the people from foreign enemies and to protect them from domestic criminals.  Most of the time on this blog we discuss the latter, but today let us pause to thank all those who have served in the defense of our nation.

News Scan

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AL Jury Recommends Death for Murderer: An Alabama jury has recommended that 33-year-old John DeBlase be sentenced to death for the 2010 murders of his two young children.  The Inquisitr reports that DeBlase, along with his common-law wife, poisoned the children with antifreeze and strangled them before dumping their bodies in the woods.  DeBlase's wife also faces murder charges in the case, her trial is scheduled to begin in March 2015. 

Detroit Leads the Nation in Murder, Violent Crime: The annual FBI Uniform Crime report has revealed that Detroit, MI leads the nation in both murder and violent crime rates.  Christine MacDonald of The Detroit News reports that despite a decline in the murder rate by 18% from 2012, the city of Detroit remains the nation's most dangerous large city.  Other cities leading the country in murders per capita include New Orleans, Newark, St. Louis, and Baltimore.  

Habitual Felons Arrested in String of Violent Attacks: A trio of Florida men, all previously convicted felons, have been arrested in connection with several violent rapes in a South Florida neighborhood.  Jason Molinet of the New York Daily News reports that the three men have been charged with sexual battery, armed robbery, and assault after DNA evidence and video surveillance linked them to at least four separate attacks.  The three men are being held without bail.

The FBI has finally come out with the 2013 statistics for Crime in the United States, almost two months later than last year.  The good news is that crime is down from 2012 about 5% in crimes per 100,000 population nationwide on both the violent (-5.1%) and property (-4.8%) scales.

Last month, we noted the good news that California crime was down, but we were interested in seeing the national figures for comparison to sort out national trends from possible effects of California's sentencing "realignment."  Last year's post making that comparison is here.

We look at property crime as the primary indicator, as persons convicted of violent crimes, either for the present offense or as priors, are not eligible to be shunted off to county jail under realignment.  Many property crime convicts are, and given that the jails are overcrowded in most counties they either get released early or they push out other inmates for early release, likely other property crime convicts.

California's overall property crime rate is down less than the national average, -3.8% versus -4.8%.  Auto theft is the category tracked by the FBI that is most likely to be affected by realignment, because all auto thefts in 2013 (pre-Prop. 47) were realignment-eligible felonies, while other categories are mixed eligible/ineligible or felony/misdemeanor.  Consistent with the realignment-effect hypothesis, California's improvement in auto theft lagged considerably behind the nation, -2.8% versus -4.0%.

Comparing 2010, the last full year before realignment, with 2013, property crime has dropped 7.2% in the nation while rising slightly, 0.8%, in California.  Auto theft is down 7.3% nationally but up 5.3% in California.
An important change in the public perception of capital punishment occurred about 15 years ago as stories of death row inmates being exonerated came to the surface.  Foremost among these stories was that of Anthony Porter, who was close to execution when another man confessed to the murder.  The truth was supposedly dug up by idealistic young journalism students who succeeded where the criminal justice professionals had failed.

The story was almost too good to be true for the anti-death-penalty movement.  And now we know it likely was not true.

Some years ago, I attended a talk by the lawyer for Alstory Simon, the man who confessed and went to prison while Porter was freed.  He said it wasn't the journalism students who got a confession from the "real" killer, it was a hired investigator.  On top of that, he said, the investigator used tactics that would result in a conviction being thrown out if a police officer had used them, and possibly a civil rights prosecution to boot.

Years later, the lawyer's efforts have born fruit, and Alstory Simon is the one who is exonerated.  Jim Stingl has this story in the Milwaukee Journal-Sentinel.

Questions for the AG Nominee

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The WSJ has this editorial on AG nominee Loretta Lynch:

The early reporting on President Obama 's choice to be the next Attorney General is that few in Washington know much about her. That may be one of the reasons Mr. Obama picked Loretta Lynch after last week's election rout. Barring some future revelations, the U.S. Attorney for the Eastern District of New York isn't likely to stir a partisan brawl with the new Republican Senate.

This does not mean that she shouldn't receive a thorough vetting. She has been a member of Eric Holder's Advisory Committee of U.S. Attorneys, and as such should be questioned about his policies. These include his use of race as a political cudgel--especially in law enforcement. Mr. Holder has used "disparate impact" theory to coerce settlements from banks and other businesses based on statistics but no proof of discrimination. A federal judge recently threw out the Administration's disparate-impact rule in housing, and the Supreme Court is hearing a separate legal challenge.
Unsurprisingly for a business-oriented paper, the WSJ is also keenly interested in asset forfeiture and its abuses.  The editorial concludes (and I agree):

On the other hand, Ms. Lynch doesn't appear to be the grandstander that many other U.S. Attorneys are, and perhaps she will show a political independent streak. She is certainly a better choice than Labor Secretary Tom Perez, who would have warranted a confirmation fight. Republicans have enough high priorities in the next Congress that the bar should be high for challenging non-judicial nominees who seem to be qualified and honest.
Readers since Friday have surely noted that Bill Otis and I have different takes on the nomination.  This may be an apt time for one of our periodic reminders.  Opinions expressed by our "outside bloggers" are their own.  We at CJLF do not review them in advance, and we might or might not agree with them.  Only Michael Rushford and I speak for the Criminal Justice Legal Foundation, the sponsor of this blog.

Academia Unhinged, Once Again

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One of the reasons I enjoy teaching is that allows me to look at the strange and wily land that exists inside the academic bubble.  To say it's disconnected from the real world doesn't even begin to catch it.

Today I noticed, on SL&P, an entry titled, "We should stop putting women in jail. For anything."

The essay, by a professor at the University of Illinois at Chicago, makes exactly the case stated in its title.  But the extent to which it goes to paint criminals as victims is remarkable even by the bizarre standards of academic life.  Sample:

What purpose is served by subjecting the most disempowered, abused and nonviolent women to the perpetually negative environment of prisons?

Ummm.....well......to punish them for crimes they committed?  To deter them? How about this juicy case?  Ripe for a stiff term of community service?

Plus, you gotta love phrases like, "the negative environment of prisons."

I took after Prof. Margareth Etienne for her Twilight Zone argument that the SCOTUS denied cert in the acquitted conduct case because it wanted a murkier case to announce a broader rule  --  notwithstanding the there's nothing like a majority for the narrower rule.  But this one might have Prof. Etienne beat.

P.S.  Someone should remind this professor that there might be an Equal Protection problem if men can get imprisoned but, categorically, women can't.

Kent noted some of the comments of the chief Federal Defender for the EDNY, where Loretta Lynch holds forth as United States Attorney.

I was an AUSA for a few years back in the day, and I want to provide a translation of the Federal Defender's remarks.

Defender:  "I'm not saying she goes our way, but you can have a meeting with her and have your two cents about policy."

Translation:  "She goes our way, but I'm not about to say so because I'm licking my chops at the prospect of her running the show at Main Justice."

Defender:  "In a field where the prosecutorial positions can be extraordinarily adversarial, she tries to be somebody you can get along with."

Translation:  "Her Office gives away the store."

Defender:  "At a time when the Justice Department has taken the position that you've got to do something about over-incarceration, [prosecuting drug mule cases is] a step in the opposite direction. I'm pretty unhappy," 

Translation:  "If I didn't complain about something, my colleagues would run me out of town."

More on Loretta Lynch

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Hypocrisy Unbound: Welcome to Harvard

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The CBS radio station in Boston has the following report about Harvard University, well-known source of bellowing about invasions of privacy and spying out of control:

A research project at Harvard University is causing a lot of controversy this morning. The school has acknowledged that it secretly photographed more than 2,000 students in 10 lecture halls as part of a study on classroom attendance. During a meeting Tuesday night, Peter K. Bol, Harvard's vice provost for advances in learning, said that researchers in the Initiative for Learning and Teaching, which Bol oversees, installed the cameras last spring as a way to track attendance. The cameras would snap pictures of students and a computer would scan the images. The names of students whose images were taken have not been released but the revelation has a lot of people talking.

Yes, well, I'll just bet it "has a lot of people talking."

This is a good one to remember next time we hear some Ivy League symposium about how the NSA, which unlike Harvard has at least a modicum of interest in the nation's security, is stripping us of our "civil liberties." 

News Scan

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Convicted Killer Accused of Raping Teen: A New Mexico man who spent several years behind bars after being found guilty of murder is facing jail time yet again after being accused of raping and impregnating a 13-year-old girl.  Nancy Laflin of KOAT News reports that 64-year-old Eusebio Jasper has been identified as the biological father of the girl's child by DNA, a claim his defense attorney denies.  Jasper spent seven years behind bars from 1989-1997 after being found guilty of second-degree murder. 

Accused Killer may Face Death Penalty: Prosecutors have announced that they may seek the death penalty against a woman accused of murdering a Kansas couple last year.  The Associated Press reports that 36-year-old Kisha Schaberg, along with three accomplices, allegedly killed the couple as they sat in their car outside of their home in November 2013.  One of Schaberg's co-defendants has testified that the couple was killed in an attempt to gain their life insurance policy and out of personal resentment.    

Judge Reverses Parole Board Decision: A Michigan judge has ordered that a convicted child molester remain behind bars after reversing a decision made by the state's Parole Board.  Jameson Cook of the Macomb Daily Tribune reports that 30-year-old Jason Harrison pled no contest to two counts of second-degree criminal sexual conduct in 2007, as of today, he has served just seven years out of a recommended two-fifteen year sentence.  The judge presiding over his case ruled that Cook should remain in state custody because he has yet to show any remorse during his treatment program and has continued to blame his actions on others.     

SJC: Take a Close Look at Ms. Loretta Lynch

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Various sources are confirming that Ms. Lynch will be the nominee to replace Eric Holder.  Presumably her nomination will go to the Senate Judiciary Committee (SJC).

Last July, the WSJ had this piece on Ms. Lynch.

Readers might recall that it was Ms. Lynch who gave in to Judge John Gleeson's unethical and baseless windfall for a repeat violent carjacker, Francois Holloway. I described the case in some detail here.  It's a scandal, there's no other word for it.

She initially resisted Gleeson's bullying, to her credit.  When he kept it up, however, she gave in.  One of her AUSA's wrote a legally and factually frivolous motion to vacate two of Holloway's convictions in order to enable Gleeson to impose the more lenient sentence he had been campaigning for for years.

I think it deeply troubling that a United States Attorney would sign a motion to vacate two perfectly valid convictions  --  indeed, convictions whose validity was not questioned.  The motion and accompanying argument were pasted together for the sole purpose of placating Gleeson's petulance.

The Senate Judiciary Committee should take a careful look at Ms. Lynch's role in the Holloway case.
Devlin Barrett reports in the WSJ:

The U.S. Attorney in Brooklyn, N.Y., Loretta Lynch, is a leading candidate to be nominated as the next U.S. attorney general, according to people familiar with the discussions.

Ohio Legislation on Lethal Injection

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In Ohio, unlike certain other states, when they have a problem with their execution method their leaders actually show some leadership and do something about it.  Jackie Borchardt of Northeast Ohio Media Group reports:

State lawmakers will revise Ohio's lethal injection procedure by the end of the year, Statehouse leaders said during a legislative preview event here on Thursday.

House Speaker William Batchelder and Senate President Keith Faber, both Republicans, said concerns about Ohio's two-drug cocktail need to be addressed soon. The two leaders spoke briefly about what they want to accomplish before this legislature ends its work in late December and what might be among the first issues the next General Assembly will tackle in January.
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Judges and the Filibuster: What to Do Now?

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As Kent has pointed out, one of the advantages of a Republican majority in the Senate is that it is likely to constrain the President in appointing judges who value "compassion" (or their version of compassion) over law.

In the old Senate, Harry Reid changed the rules governing how filibusters would be conducted on the nominations of court of appeals judges.  Instead of taking 60 votes to end debate, as it had for years, Sen. Reid and his party re-rigged the rules so that it took only 51.  When Democrats had a 54-seat majority, this enabled them to get Obama's nominees to the floor at will.

Now that Republicans will have their own 54-seat majority, the question has arisen whether they should bring back the old rule requiring 60 votes to end debate, or keep the rule as Reid changed it.

Very bright people have different answers.  My old boss and friend, former White House Counsel Boyden Gray, says in the Wall Street Journal (in a piece co-authored with Sen. Orrin Hatch) that we should keep the new rule.  My friend Paul Mirengoff of the influential conservative blog Powerline thinks we should restore the old rule.

This makes a big difference.  Boyden and Paul are both brilliant.  My take on it follows the break.

News Scan

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Parolee Charged with Murder: A New York man on parole for a burglary conviction has been arrested and charged with the murder of a 17-year-old girl.  Steve Yablonski of the Oswego County Today reports that 32-year-old Steven D. Szatanek allegedly lured the young girl to a beach where he drowned her, two campers saw the girl's body later that day floating in the water.  Szatanek has been charged with second-degree murder and second-degree manslaughter, if convicted, he faces a possible sentence of 25 years to life.  

CA Reduces Penalties for 'Low Level' Offenders: California voters have approved a proposition that is expected to release thousands of state prisoners back into local communities.  Matt Sledge of the Huffington Post reports that Proposition 47 will reduce felonies like shoplifting and drug possession, gun theft and possession of date rape drugs down to misdemeanors.  As many as 10,000 people may now be eligible for early release from state custody, and courts are expected to try 40,000 fewer felonies each year. 

Convicted Killer Denied Parole: A Mississippi man convicted of kidnapping and murdering a woman in 1981 has been denied parole by the state's court of appeals.  The Associated Press reports that Milton Trotter, along with two accomplices, kidnapped a California woman and brought her back to Mississippi where they killed her and left her body in a hotel room.  All three of the men pled guilty to the federal kidnapping charge and state murder charge in 1981, Trotter was paroled from his federal kidnapping sentence in 2011 and asked the state court that he be released from custody for the murder charge.  

Where Is Sentencing Reform Today?

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Yesterday, sentencing reform (that's the gauzy phrase that means letting criminals out earlier) was six feet under.  The reckless, judges-run-wild JSVA was so radical it hadn't even received a vote in SJC; and the SSA, which got a favorable Committee vote (13-5) under the leadership of Chariman Leahy headed straight downhill thereafter. Majority Leader Reid said he would bring it to the floor, but never did.

This was back in the first part of the year.

With last night's results, and Republicans likely to have at least 54 seats in the new Senate, sentencing "reform" and similar measures are extra dead.  Majority Leader-designate McConnell has never said a word in favor of dumbed-down sentencing, and Chairman-in-Waiting Chuck Grassley brilliantly led the opposition to the SSA and the JSVA (and successfully sponsored three new mandatory minimums).  The old House never acted on either bill, and the new House is less favorably inclined toward them than the old one.

But the basics are not in the leadership.  The basics are that the American public rightly has no desire to cash in the success stern sentencing has given us. Crime was not an issue in last night's Congressional elections, but they produced a majority of the majority in each house even more skeptical about the what-me-worry approach to sentencing than had been there before. 

The Senate

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8:30 PST:  Republicans are now projected to hold at least 52 Senate seats in the next Congress.   Party control is not everything, but overall the next Congress should be better for the cause of justice. 

News Scan

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Several States to Vote on Marijuana Legislation: Voters in several states across the U.S. are will vote today on a variety of bills legalizing the use of marijuana, decriminalizing the possession of the drug, and shortening the amount of time convicted users spend behind bars.  Matt Ferner of the Huffington Post reports that voters in Alaska, Oregon, and Washington D.C. will vote on whether or not adults over the age of 21 should be able to possess and grow marijuana at their homes.  Voters in Florida will decide if marijuana should be legalized for medicinal purposes.  Californians will vote on proposition 47, which if passed, would reduce the majority of so-called  'nonserious and nonviolent' drug crimes from felonies to misdemeanors.

Suspect in SoCal Hit-and-Run Had Several Probation Violations: The Southern California man arrested for a hit-and-run Halloween night that left three young girls dead was driving on a suspended license and had violated his probation at least seven times.  Emily Foxhall and Joseph Serna of the Los Angeles Times report that 31-year-old Jaquinn Bell was convicted of hit-and-run driving and DUI in August and was sentenced to just 10 days behind bars and three years probation.  His driver's license was suspended just 17 days before last weekend's deadly Halloween crash.  Bell faces three felony counts of vehicular manslaughter and several other felony charges. If found guilty on all counts, he faces a maximum of 17 years in prison. 
Update:  Jaquinn Bell would have been serving a 4 year prison term for his Hit and Run and drunk driving convictions last August if California's Realignment law were not in force and the three victims would be alive today. 


Missouri Amendment Would Strengthen Sex Offender Laws: Voters in Missouri will vote on an amendment that would allow allegations of past criminal acts to be used against individuals facing sex-related charges involving a victim under 18-years-old.  Amy Anderson of KCTV reports that under current state law, if a convicted child predator is facing new charges, the jury presiding over his/her most recent case can't be told of the prior act.  Missouri is the only state that doesn't allow prior criminal acts involving children to be admitted as evidence in future court hearings.    


To Live and Lie in L.A.

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How much jail time do you get for perjury and fraud in California today?  71 minutes.  Laura Rosenhall reports in the SacBee:

Former state Sen. Rod Wright turned himself in to Los Angeles County jail authorities Friday night to begin a 90-day sentence for his perjury and fraud conviction, but was released before ever seeing the inside of a cell.

Wright, a Democrat, turned himself in around 9:30 p.m. and was released at 10:41 p.m. after being processed and booked, said Nicole Nishida, a spokeswoman for the Los Angeles County Sheriff's Department.

She said he did not get any special treatment for being a politician.
So says Nate Silver at 538.

Will we have the answer early, late, or very late?

News Scan

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High Court Denies Death Penalty Appeal: The U.S. Supreme Court has denied an appeal by an Alabama man sentenced to death for the 1989 pipe bomb death of a federal appeals court judge.  Kent Faulk of AL.com reports that 79-year-old Walter Moody was arrested in 1991 for the crime and was originally sentenced to seven consecutive life sentences in federal court before being convicted of capital murder and sentenced to death in 1996 in an Alabama county court.  State officials have yet to set a date for Moody's execution, he remains the oldest inmate on the state's death row.

Jury Recommends Death for Killer:  An Ohio jury has recommended a death sentence for the man accused of beating his ex-girlfriend's parents to death with a sledgehammer.  The Associated Press reports that Shawn Ford Jr., along with a 14-year-old accomplice, killed the couple just 10 days after he stabbed and critically injured their daughter when she refused to have sex with him.  The judge presiding over the case has the final say on the sentencing decision and is expected to make it over the next few weeks. 

Prosecutors to Seek Death Penalty for Child Killer: A Kentucky prosecutor has announced his plan to seek the death penalty for a man accused of brutally killing a 13-month-old boy last month.  Todd Kleffman of The Advocate Messenger reports that 25-year-old Joseph Adams allegedly sodomized and killed the boy after being trusted by the boy's mother to babysit him while she was at work.  The sodomy charged added to the charge of murder is considered an 'aggravator' and makes the crime death penalty eligible.


SCOTUS Halloween Conference

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The U.S. Supreme Court this morning released the orders list from its Halloween Conference.  No new cases taken up.  No opinions dissenting from denial of certiorari.  The Hurles case is relisted yet again.  No report on who the Justices dressed up as.

Yawn.

Update:  Okay, that yawn was a bit hasty.  Here is one newsworthy item.  The Court denied the petition of Georgia murderer Warren Lee Hill on the drug supplier confidentiality question.  See prior posts here and here.

Estrangement from Common Sense

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Peggy Noonan has this column in the WSJ, comparing her great-aunt's acceptance of needed health measures upon her immigration from Ireland a century ago and the irresponsible quarantine-breaking of some people returning from Ebola-infected areas today.  The broader point comes near the end:

It must be noted that all this--the quarantine argument, the travel ban--is another expression of the deep, tearing distance between America's professional and political elites, who operate as if they are estranged from common sense, and normal people, who are becoming more estranged from the elites, their oblivious and politicized masters.

That distance has been growing all my adult life, but the Ebola argument has brought it into sharper relief. The elites should start twigging onto it. They are no longer immediately respected, their guidance is not reflexively taken. They seem more immersed in political thinking--what is the ideologically enlightened position to take, where's the boss on it?--than in protecting public health.

Or thinking commonsensically, like your great-aunt.

Which is too bad because great-aunts built America.
Those that Ms. Noonan calls "normal people" I call "persons of sense."  The other side is not just "elites."  It started that way, but the dearth of sense among educators,  media moguls, and the celebrities that too many people look up to have caused a spread of Common Sense Deficit Disorder throughout our society. 

This is one of the greatest dangers to our society today.  It looms in the background of the actual root causes of crime -- permissive parenting, standardless schools, and acceptance of excuses for wrongdoing.

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