December 2014 Archives

Race Relations Tank, Part II

Race is morally irrelevant and in a correctly functioning world would be legally irrelevant.  But that is not the world we live in, and discussing race on a criminal law blog has become, unfortunately from my point of view, inescapable.

President Obama says that race relations have improved.  This is simply false, as I noted in Race Relations Tank.

The reason they've tanked under the President's grievance-pumping Administration isn't hard to figure out. The flashpoint was the Ferguson riot.  To say the least, things have not improved since.  Here's a start on the explanation:

Obama "assured" NPR that the issue of mistrust between police and minority communities isn't new. He claimed, though, that it hasn't been widely discussed until now, and that the current discussion is "probably healthy."

But the problem that has surfaced under Obama isn't "discussion" of police-community relations. The problem is race rioting and violence against the police.

The Ferguson rioting; the chants calling for "dead cops" now; the assassination and attempted assassination of police officers; the reluctance, or even the refusal, of the police to respond promptly to calls for help -- these are phenomena we haven't witnessed since the 1970s.

These phenomena aren't "discussions,"and they certainly aren't "healthy." They are evidence of a deterioration in race relations and signs of a breakdown in society. 

Mayor de Blasio and the NYPD

The New York Times's temper tantrum masquerading as an editorial  --  the one attacking police officers' right to dissent  --  is balanced by this more thoughtful view in Commentary.  One may see the officers' turning their backs to Mayor de Blasio as "inappropriate," as Rudy Giuliani and Commissioner William Bratton have said, and still think the First Amendment lives on, even, amazingly, for the police.  Liberals once understood that the right to speak freely is most essential when what gets said is least popular (or "appropriate").  Well, that was then.

I deconstructed the NYT editorial here.  The Commentary article elaborates a similar view, and fleshes out the context of the tension between de Blasio and his police force thusly:

After only a year in office, de Blasio finds himself in a crisis largely of his own making...Having antagonized the police by campaigning against stop and frisk policies, he went a bridge too far when he joined in the chorus of those treating law enforcement as the enemy after Ferguson and then the non-indictment of the officer accused of choking Garner. That rhetoric created the impression that de Blasio agreed with those who have come to view police officers as guilty until proven innocent when it comes to accusations of racism or violence against minorities.

The police are not perfect and can, like politicians, make terrible mistakes. But the problem with the post-Ferguson/Garner critique that was relentlessly plugged by racial inciters, the liberal media and prominent political leaders such as Obama and Attorney General Eric Holder is that it cherry picked two extraordinary and very different incidents and wove it seamlessly into a highly misleading narrative about racism that might have been applicable in Selma, Alabama in 1965 but doesn't reflect the reality of America in 2014. 

The entire article, which isn't that long, is worth the read.


A Sentencing Story Too Good To Pass Up

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Ed Whelan of NRO does a piece titled "This Day in Liberal Judicial Activism." Today's squib is sadly hilarious at a number of levels.  It's an easy guess that it comes to us from the Ninth Circuit:

In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines' rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is "a powerful indictment of the criminal justice system" and that the problems of alcohol abuse and crime on Indian reservations "cry out for treatment, not simply more prison time." Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend. In the end, the panel's spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court's January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

Those Self-Pitying Cops

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The New York Times outdoes itself in this editorial.   While trying manfully not to snicker at the assassination of two policemen, it can't quite get there:

Mr. de Blasio isn't going to say it, but somebody has to: With [their] acts of passive-aggressive contempt and self-pity, many New York police officers, led by their union, are squandering the department's credibility, defacing its reputation, shredding its hard-earned respect.

This from the same NYT that's done everything in its power to destroy the department's credibility, sully its reputation and shred any respect a normal person might feel for it.

But wait!  There's more!

[N]one of [the officers'] grievances can justify the snarling sense of victimhood that seems to be motivating the anti-de Blasio campaign -- the belief that the department is never wrong, that it never needs redirection or reform, only reverence. This is the view peddled by union officials like Patrick Lynch... -- that cops are an ethically impeccable force with their own priorities and codes of behavior, accountable only to themselves, and whose reflexive defiance in the face of valid criticism is somehow normal.

You gotta love it when the grievance-mongering NYT, with no discernible sense of irony, writes about a "snarling sense of victimhood."  Talk about living in a bubble! And here I thought academia was bad.


USCA9 Drops Henry Like A Hot Potato

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The strange case of Arizona murderer Graham Henry continues.

Three weeks ago, I noted that the U.S. Supreme Court had taken the unusual step of directing the Court of Appeals for the Ninth Circuit to answer Arizona's petition for an extraordinary writ.  The state was challenging the Ninth's decision to stay the mandate in Henry's case while it considers another case, McKinney v. Ryan, even though the panel in Henry had decided that it really makes no difference to that case how McKinney comes out.

Two days after the Supreme Court's order, the Ninth reheard McKinney en banc.  Today, the Chief Judge issued an order in Henry saying,

Having heard the argument in McKinney, and having considered the record and the briefs filed by the parties in this case, the Court concludes that: (1) the facts and legal arguments are adequately presented in the briefs and record, and that the decisional process would not be significantly aided by oral argument; and (2) a stay of proceedings and further en banc consideration in Henry is not necessary to secure or maintain the uniformity of the Court's decisions.

Therefore, this case is submitted for decision without oral argument. Fed. R. App. P. 34(a)(2). Henry's motion for a stay of proceedings pending the issuance of a decision in McKinney is DENIED. En banc proceedings in this case are concluded. The Clerk is directed to issue the mandate.
I don't know what the Ninth will say to the Supreme Court in its response next Wednesday, but in substance it will probably amount to something equivalent to the famous words of Gilda Radner, "Oh, never mind."

I don't seriously believe that it was the oral argument in McKinney that changed their minds.  Oral argument is rarely that illuminating.  Everything they needed to know was in the papers.

News Scan

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Execution Dates Set For Alabama Killers:  Alabama's highest court has set execution dates for two convicted killers that have been on death row for decades.  Tim Lockette of the Anniston Star reports that executions in the state had been delayed since 2013 due to a lack of execution drugs.  The executions, scheduled to take place in February and March, will be the first time the state uses a new three-drug protocol utilizing the anesthetic midazolam, to prevent the murderers from feeling any pain. 

Police Officer Shooting Deaths Jump 56 Percent: The number of police officers killed by firearms in the U.S. during 2014 jumped by 56%, sending a shockwave through law enforcement agencies around the country.  The Associated Press reports that 50 officers were shot this year, compared to 32 officers in 2013.  Fifteen of the shootings were from ambush attacks.  "With the increasing number of ambush-style attacks against our officers, I am deeply concerned that a growing anti-government sentiment in America is influencing weak-minded individuals to launch violent assaults against the men and women working to enforce our laws and keep our nation safe," said Craig Floyd, chairman and CEO of the memorial fund.  

Illegals Becoming More Aggressive At Border Crossings: Border Patrol agents in Arizona report that illegal immigrants attempting to cross the border have become increasingly more resistant and are behaving more aggressively, resulting in more officer assaults.  Fox News Latino reports that these individuals are more desperate to cross the border and are going to extreme lengths to make it.  During the 2014 fiscal year, Border Patrol reported 373 attacks on agents, the majority of which took place at the U.S. -Mexico border.

Seems like we just finished a congressional election, doesn't it?  That's because we did.  The good folks of Staten Island, New York have another one coming up, though. Their just-reelected congressman, Michael Grimm, has been convicted in federal court and has resigned.

Nia-Malika Henderson has this post in The Fix, the WaPo's political blog, titled "Race to replace Grimm could be all about Bill de Blasio and Eric Garner."

This is the district, after all, where Garner was choked by a police officer and later died. It's also the rare part of New York City that doesn't really like the Democratic mayor, who has inflamed New York City police by appearing too sympathetic to the Garner protesters. A recent poll pegged de Blasio's approval on Staten Island at 25 percent, with 58 percent disapproving. City-wide, he was in positive territory, at 50 percent approval and 32 percent disapproval.

Another key data point (referenced above): de Blasio won his 2013 race by a whopping 49 points but still lost Staten Island to Republican Joe Lhota.

Crime wasn't a big issue in the last election.  To some extent, crime fighters are political victims of our own success.  We set out in the 80s to bring down the sky-high crime rates.  Crime issues were prominent in elections in the 80s and 90s, and important changes in policy were made.  Down the rates came, as much as would could have hoped for.  Recently crime has been off most voters' radar screens, as noted in Bill's post.

Falling crime rates were not the only reason for the lack of voter attention, though.  Wars in the Middle East and economic crises at home also displaced crime from the spotlight.  With those issues fading, voter attention to crime may return, even if not at the intensity of years past.

The Number One News Story of 2014

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My friend John Hinderaker has a fascinating post up showing the most tweeted-about news stories of 2014.  In second place is the August 9 shooting of Michael Brown in Ferguson, MO.  First place is held by the December decision of the grand jury not to indict the shooter, Officer Darren Wilson.  It's reasonably clear that the grand jury declined to bring charges because it believed Wilson acted in self-defense, an account supported by both forensic and eye-witness testimony.

What's unusual is that a crime story gets ranked first when crime is relatively low, as it is now.  Crime barely got a mention as an issue when pollsters were asking, in the run-up to the midterm elections, what the public was most concerned about. Indeed, crime, violence, drugs, law and the judicial system together barely scratched the surface, as Gallup reports

So why is a crime story Number One in a year that saw a partisan wave in the elections, the outbreak of Ebola, the (still) mysterious and spooky disappearance of a commercial airliner, the horrifying beheading of a captive journalist, Russian military aggression in Europe, and a cyberattack within the United States sponsored by a foreign country?

Wars Have Casualties

On August 9 this last summer, police officer Darren Wilson shot and killed Michael Brown, a 6'4" 292 pound unarmed 18 year-old who had just forcibly robbed a convenience store of some trivial items.

From that day to this, there has been a media and cultural war on the police. They are, we are variously told, racist, thuggish, unaccountable and over-militarized. You will have missed it only if you've been living in a cave.  C&C has covered it extensively.

Wars have casualties.  Today we heard about some in the Washington Examiner.  Its story is headlined, "Police deaths soar 24% in 2014 with ambush attacks leading cause."  It starts:

Law enforcement fatalities in the United States rose 24 percent in 2014 to 126 and ambush-style attacks were the No. 1 cause of felonious officer deaths for the fifth straight year, according to preliminary data from the National Law Enforcement Officers Memorial Fund.

The NLEOMF report said 126 federal, state, local, tribal, and territorial officers were killed in the line of duty this year, compared to 102 in 2013. The number of officers killed by firearms in 2014 -- 50 -- is up 56 percent from the 32 killed last year.

Fifteen officers nationwide were killed in ambush assaults in 2014, and the recent shooting deaths of New York City Police Officers Wenjian Liu and Rafael Ramos have attracted national attention and contributed to tension between police and the city's elected leaders.

The total of 15 ambush assaults matched 2012 for the highest total since 1995.

The hate war against the police is not directly responsible for most, or perhaps any, of this.  At the same time, those insisting that hate has no consequences are lying to themselves and to us.

Sean Murphy has this story for AP with the above headline.

The botched execution of Clayton Lockett in April and other troubling ones this year in Ohio and Arizona gave capital punishment opponents a flicker of hope that areas of the country that most enthusiastically support the death penalty might have a change of heart. They didn't.
Kudos to Murphy for recognizing that only one execution in recent times actually qualifies for the designation of "botched."  Categorizing a few others as "troubling" is not troubling.

Why are the opponents scratching their heads?  Why do they think that support for the death penalty is so fragile that any bump in the road should shatter it, no matter how many times they are disappointed?

Dude, Where's My Car? (Update)


Nearly two years ago, we noted a disturbing statistic from half-year preliminary crime data from the FBI.  Here is an update from later and more complete data.

Of the categories of crime tracked by the standard statistics, auto theft is the category most likely to have been affected by California's prison realignment program.  Auto theft was always a felony.  Before realignment, it was therefore a crime for which a state prison sentence was always a possibility, although the judge had discretion to give a lesser sentence.  After realignment, auto theft is a crime for which a person can never go to state prison.  Not for the 97th offense.

News Scan

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Parolee Accused of Murder: A Missouri man with a criminal history dating back more than 10 years has been arrested and charged with murder after authorities say he shot and killed a man the same day he was released on parole.  Brandie Piper of KSDK News reports that in addition to a second-degree murder charge, 29-year-old Dominic Irons is also accused of shooting and wounding an off-duty police officer.  While Irons was incarcerated in 2012, he was sentenced to an additional six years for assaulting either a corrections employee or fellow inmate, however, that sentence was suspended, allowing his release on parole. 

Death Penalty Bill Would ID Executioners: Democrat lawmakers in Florida have proposed a bill ( HB 4003) that would require the state to disclose the names of executioners responsible for administering lethal injection drugs to condemned inmates.  Troy Kinsey of Bay News reports that for years, Florida Democrats have made several unsuccessful attempts to repeal the death penalty.  The new bill to out those involved in executions is set to be argued next year.

Fearful NYPD Officers Letting Minor Crimes Slide: Recent attacks on police officers in New York have prompted some officers to let minor crimes slide by without a citation or arrest out of fear that they may become the next victim of retaliation.  The New York Post reports that in addition to hesitant officers, a new mandate requiring two patrol cars to respond to every call for service has slowed down response times to non-emergencies and resulted in a manpower shortage.  This past weekend, officers in Florida and Los Angeles were targeted with shootings, leaving police officers across the country on high alert.  

USCA9 Flips Yet Another Death Sentence

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Twenty-five years ago, in Tucson, Arizona, Eric Mann conceived a cold-blooded plan to cheat another man in a drug deal and then kill him to cover it up.  When the customer brought someone else to the transaction, Mann killed them both according to his plan.

After Mann's claims against his death sentence were heard and rejected by the Arizona Supreme Court, the trial court on collateral review, the Arizona Supreme Court again, and the federal district court, Mann appealed to the Ninth Circuit.  The panel assigned was Judges Sidney Thomas, now Chief Judge, Stephen Reinhardt, and Alex Kozinski.  Knowing nothing about the legal issues but only from the composition of the panel, can you guess the outcome?

Broken Windows Policing, Part II

About five minutes before I read Kent's post about broken windows policing, I received the following message from a Facebook friend who lived it:

Some of you may have noticed a pattern in our "national conversation about race" in which the focus of attention has shifted from racist cops to institutional racism of police departments and now, is focused squarely on the "broken windows" theory of policing, so-named for an article in the Atlantic Monthly by Harvard Prof. James Q. Wilson, based on his research of many years on the tolerance of petty crime in urban areas. There has been a blizzard of articles like this one over the last two weeks, executed on cue. Be prepared to hear [these] arguments in Derrick Jackson's piece over and over, in the media and on FB.

Having lived in Boston and later in NYC during both the late Koch years through Giuliani's first term, I saw this proactive method of policing introduced, and it produced results within one year. Most people, however, have no memory or knowledge of what it was like to live in a place where every public park, train, wall was defaced with graffiti and gang markers, where tot lots were used for drug deals in the open daylight, where muggings were a routine occurrence and the victim was blamed for "being there at that hour of night" or for "what she was wearing," etc. People don't remember putting the "NO RADIO" sign in your windshield after you'd lost several of them already and had given up replacing them.

Why We Need Broken Windows Policing

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NYPD Commissioner William Bratton and Professor George Kelling have this article with the above title in the City Journal.

Critics have posed a variety of arguments against Broken Windows. Some assert that it is synonymous with the controversial patrol tactic known as "stop, question, and frisk." Others allege that Broken Windows is discriminatory, used as a tool to target minorities. Some academics claim that Broken Windows has no effect on serious crime and that demographic and economic causes better explain the reductions in crime in New York and across the United States. Still other critics suggest that order-maintenance policing leads to over-incarceration or tries to impose a white middle-class morality on urban populations. It is rare to have the opportunity and space to correct all the misconceptions and misrepresentations embedded in such charges. We will counter them here, one by one.

The Voter Suppression Myth

It is an article of faith on the political left that efforts to tighten up protections against voting fraud are really just evil, racist Republican efforts to suppress the vote of racial minorities, who supposedly have enormous difficulty complying with such simple requirements as registering 30 days before an election and showing an ID at the polls.  If that were true, one would expect that success in the effort to "impose barriers" would be followed by a sharp drop in turnout.

Well, it didn't happen in North Carolina.  Robert Popper of Judicial Watch has this op-ed in the WSJ.

Turnout data for the 2014 election, posted Dec. 10 on the state's Board of Elections website, tell a different story. Black turnout and registration for the November 2014 election increased by every relevant measure compared with November 2010, the last non-presidential general election.

Rape Hoaxes Galore

The assassinations of two New York policemen have gained fully warranted attention in recent days, and have knocked out of the headlines the University of Virginia/Rolling Stone rape hoax.  

Today I want to re-visit that story, both for its own lessons, and because it's related to the hate campaign against the police  --  that is, against a group consisting largely of white males.  The rape hoaxes and the "Police Are Nazis" crusade have the same general goal, that being to whip up disabling guilt among Those Who Enjoy Privilege (whites, men, the One Percent, fraternity members, people in uniform, etc.  -- anyone who's not among the Politically Correct will do well enough).

The reasons for whipping up guilt among the non-politically correct are multifaceted, but there's one in particular that stands out for purposes of this blog:  To sap the moral confidence needed to enforce criminal law.  Once we become convinced that policemen (e.g., Darren Wilson) are hooligans, and white frat men (e.g., "Jackie's" alleged attackers) simply walk past the punishments that would apply to others, we come to doubt both the fairness of the system and, thus, our own moral standing to enforce its rules.  Their enforcement then becomes irresolute.

Q:  Who will most directly benefit when that happens?

A:  Criminals.  And that, ladies and gentlemen, is the point.  Don't be fooled.

The rape hoaxes (not including the infamous Duke case) are here

Pot Law, Up in Smoke?

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Today's Wall Street Journal has a piece about the lawsuit filed by Nebraska and Oklahoma against a neighboring state, Colorado, for the latter's purported legalization of recreational marijuana.  The column, by David Rivkin (a friend of mine) and Prof. Elizabeth Price Foley, starts thusly:

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado's law legalizing marijuana. The lawsuit states that, "The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws."

Many conservatives have criticized Nebraska and Oklahoma for being "fair-weather federalists" because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress's power to regulate commerce.

Conservatives' ire instead should be directed at the Obama administration's decision to suspend enforcement of the federal law prohibiting marijuana--a decision so warping the rule of law that the complaining states' reliance on Raich is justified and necessary.

Kent had a post here discussing some of the procedural "inside baseball" riddles of this suit.   Doug Berman discusses the suit in entries here and here.

CJLF takes no position on the legalization of pot.  I personally would keep pot as illegal as it is now, to wit, some but not much, as every college-age kid knows (and you can be sure many demonstrated just over the weekend).

...bear in mind Mr. Rehab himself, Jihadist-turned-poet (according to his gushing defense lawyer, Marc Falkoff), Ibrahim al-Rubaish.  As this story relates:

The United States government has put al Qaeda's Ibrahim al-Rubaish on a global terrorist list and offered a $5 million reward for information on his whereabouts. Once we knew his whereabouts -- Guantanamo Bay detention center. But in 2006, the U.S. released Rubaish to Saudi Arabia where he was to be "rehabilitated."

At the time, Rubaysh was a poster child for the terrorist detainee-sympathizing, anti-Gitmo crew. Marc Falkoff, a lawyer for detainees and editor of Poems from Guantánamo: The Detainees Speak, included in his collection a poem by Rubaysh called "Ode to the Sea." In his introduction to the poetry collection Falkoff, described Rubaysh as follows:

Ibrahim al-Rubaish was teaching in Pakistan when he was arrested by mercenaries and sold to allied forces. A religious scholar who dislikes hostility and was once a candidate for a judgeship, Rubaish has a daughter, born just three months before he was captured, who is now five years old.

Gosh, you really have to wonder what our government was doing incarcerating a sweetie like that.  Indeed, one can only speculate whether Mr. Falkoff could hold himself together while describing such a saintly man.

Well, anyway, now that Ibrahim al-Rubaish has been "rehabilitated," he has returned to  --  guess what?  --  writing more poems plotting to murder Americans, as many as he can count heads to slice off.

Rehab is a great thing, I tell you.

Florida Takes the Number 3 Slot

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Valerie Bauerlein reports in the WSJ, "Florida overtook New York as the third most populous state last year, according to data released Tuesday by the U.S. Census Bureau, as the Sunshine State continued to pick up postrecession steam."

Officer Liu's Widow Speaks

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Kent posted a short tribute to New York City police officers Rafael Ramos and Wenjian Liu, who were assassinated last weekend.

The widow of Officer Liu spoke to the press.  She starts at the 0:47 mark of this tape.

I am not a particularly emotional person, but unless you're made of stone, this is hard to watch.  They had been married for two months.

Officers Ramos and Liu, R.I.P.

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Michael Wilson and Michael Schwirtz report in the NYT:

Bin Fin Liang, 56, said Officer [Wenjian] Liu would drop by his restaurant supply shop on the way home from the Police Academy. Mr. Liang asked him why he wanted to be an officer.

"I know that being a cop is dangerous but I must do it," Officer Liu replied, his friend said. "If I don't do it and you don't do it, then who is going to do it?"

*                              *                            *

On Sunday, those same neighbors were mourning the loss of Officer [Rafael] Ramos, who joined the Police Department three years ago. While residents of his working-class neighborhood described the pride he took in being an officer, they remembered him more as the man who shoveled sidewalks after snowstorms, or who took his two boys to nearby Highland Park to play basketball, always with a smile on his face.

"He was a wonderful man," said Alexander Justi, 72, who wiped away tears. "He's good people."

News Scan

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Violent Sex Offender On The Run After Removing GPS Device: Police in Southern California are warning residents about a violent sex offender who recently removed his court-ordered GPS monitoring device and fled the area.  Hector Bercerra of the Los Angeles Times reports that 43-year-old Joseph Serapiglia was convicted of raping and stabbing his neighbor in 1991 and was sentenced to more than 40 years.  He was released earlier this year after serving just 23 years. Serapiglia was convicted of attempted murder after police say he stabbed his neighbor multiple times and threw her down a 25-foot cliff, leaving her for dead. 

Pakistan to Execute Hundreds of Militants: Pakistan has announced its plan to execute roughly 500 convicted terrorists after the government lifted a six-year moratorium on the death penalty.  AFP News reports that the resumption came after last week's deadly terror attack at a school that left 149 people dead including 133 children.  The 500 convicts set to be executed have exhausted all of their appeals and have had their mercy petitions denied.  As noted in this post, executions resumed last week.

Police Make Arrests in Oregon School Shooting: Police in Oregon have announced the arrests of three suspects believed to be responsible for this month's school shooting that left four students injured.  Charlene Adams of the Daily Mail reports that police believe the shooting was gang-related, as two of the victims had known gang ties.  The three men have each been charged with attempted murder and a variety of other charges including tampering with evidence, being a felon in possession of a gun, and probation violations.

Edmund Burke, Barack Obama and Cop Killing

The title of this entry is taken from a thoughtful and disturbing essay by Paul Mirengoff.   It quotes Yuval Levin on the origin of the great divide in American politics, a divide on vivid and bitter display in the reaction to this weekend's police murders.  

It starts with Levin's description of the essence of how Burke viewed the fragility of civilization:

We cannot be simply argued out of our vices, but we can be deterred from indulging in them by the trust and love that develops among neighbors, by deeply established habits of order and peace, and by pride in our community or country. And part of the statesman's difficult charge is keeping this balance together, acting rationally on this understanding of the limits of reason. 

But pride in community and country is under attack. As Paul writes:

[President] Obama and [Attorney General] Holder look for occasions to pontificate in ways that undermine mutual trust and trust in institutions that maintain order. They seized, for example, on the unfortunate but justified killing of a thug who attacked a police officer in Missouri as the pretext for claims that law enforcement in this country is systematically unjust to African-Americans.

Shortly after this, they seized on what appears to have been an unjustified, but non-racially motivated, killing in Staten Island as the basis for pressing their divisive theme. And the mayor of New York chimed in by announcing that he warns his bi-racial son, in effect, that the police may be out to get him because of his color.

My experience as a prosecutor taught me that two things broadly separate criminal thinking from the thinking of law-abiding people:  Empathy and self-restraint.  These qualities are grounded in confidence in society's right and power to make rules and enforce them fairly.  It is Obama's and Holder's dishonest undermining of that confidence, more than anything else, that is the most corrosive component of our present "national conversation." 

News Scan

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Habitual Felons Charged in CA Bank Robbery: Police in Northern California have arrested three repeat felons in connection with the robbery of a credit union. KCRA News reports that the suspects, two men and a woman, all have lengthy criminal pasts and have been arrested on a variety of charges including burglary, robbery, theft, drug, and weapons offenses.  One of the suspects, 41-year-old Maurice Hill, is also a suspect in several armed robberies throughout the Bay Area. 

Parolee Accused in Cop Killing: A Florida man is behind bars and awaiting murder charges after authorities say he shot and killed a police officer Sunday morning.  Alejandro Alba of the New York Daily News reports that 23-year-old Marco Parilla Jr., a fugitive wanted for a parole violation, shot the officer after he was approached about a noise complaint.  This has been a deadly weekend for police officers around the country.  On Saturday, two officers with the New York Police Department were assassinated by a man who posted online that he was seeking revenge against police for Michael Brown and Eric Garner.    

Ex-Con Charged in Triple Murder: A Maine man with a history of domestic violence has been arrested and charged with three counts of murder after authorities say he killed his girlfriend and her two children.  The Associated Press reports that 27-year-old Keith Coleman has a criminal record dating back to 2011, and has been arrested on multiple occasions for domestic violence.  Coleman is currently being held in county jail without bond.

Elonis Podcast, Claremont Edition

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My teleforum on the Elonis case with John Eastman of the Claremont Institute is now available as a podcast.  It's about 10 minutes.

A Career Prosecutor for US DAG

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President Obama has nominated Atlanta U.S. Attorney Sally Yates to the number 2 spot at USDoJ, Deputy Attorney General.  Andrew Grossman and Devlin Barrett have this article in the WSJ.

A graduate of the University of Georgia law school, Ms. Yates has 2½ decades of experience as a federal prosecutor. Her career includes the prosecution of Eric Rudolph, who pleaded guilty in 2005 to bombing the 1996 Atlanta Olympics.

What's Different About Today's Police Bashing?

Howard Safir, Commissioner of the New York City Police Department from 1996-2000, gives the answer in his short Time magazine essay:

When Ismaaiyl Abdulah Brinsley brutally executed Officers Ramos and Liu he did so in an atmosphere of permissiveness and anti-police rhetoric unlike any that I have seen in 45 years in law enforcement. The rhetoric this time is not from the usual suspects, but from the Mayor of New York City, the Attorney General of the United States, and even the President. It emboldens criminals and sends a message that every encounter a black person has with a police officer is one to be feared. Nothing could be further from the truth. We will never know what was in the mind of Brinsley when he shot officers Ramos and Liu. However we do know that he has seen nothing but police bashing from some of the highest officials in the land.

I disagree with Mr. Safir in only one respect.  We do know what was in Brinsley's mind.  He told us shortly before the murders when he wrote on his Instagram page, "I'm putting wings on pigs today...They Take 1 Of Ours ... Let's Take 2 of Theirs."
Did some quick checking.  Apparently not.  Looks like you folks in NYC are stuck with the huge mistake made by a majority of your fellow citizens for the balance of his term.

Jordan Resumes Executions

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BBC reports:

Jordan has executed 11 men convicted of murder, ending an eight-year moratorium on the death penalty in the country.

The interior ministry said the men, convicted in different cases, had been hanged at dawn on Sunday.

Jordanian authorities gave no reason for the lifting of the 2006 moratorium on capital punishment.

Interior Minister Hussein Majali recently said the public blamed a rise in crime on the non-application of the death penalty, AFP news agency reports.

Race Relations Tank

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An NBC/Wall Street Journal poll published four days ago showed that, as our "national conversation" about race gets pumped by Eric Holder, Al Sharpton and like-minded opinion leaders, Americans view race relations as having hit their lowest point since the last century.

The reason for this seems evident to me.  The "national conversation" is not designed to promote understanding, cooperation or "healing"  --  the usual goals we get lectured about.  It's designed to promote anger, resentment and grievance. The poll suggests it's succeeding.

It was taken, of course, before the yesterday's avowedly racist police assassinations. 

The Ferguson Protesters Got What They Wanted

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The narrative has already begun that the assassination of two NYC police officers had nothing to do with the hatred of the police that Leftists (and not a few libertarians) have been fanning at least since the Michael Brown shooting in Ferguson.  A related narrative is that the assassin was simply a deranged man bent on violence, see, e.g., this just-published NYT story.

I guess we're supposed to forget this demonstration, staged in New York City a very few days before yesterday's assassination.  For those who have trouble with the audio portion, let me spell it out.  What the demonstrators are chanting is, "What do we want? Dead cops! When do we want it? Now!"

As the title of this entry says, they got what they wanted.
In a scene full of sadness, anger and portent, police officers in complete silence turned their backs to Mayor Bill De Blasio as he entered a room to hold a press conference.  The scene, from CBS News in New York, is here.  You can only grasp its power by watching it.

A NYT story contains this interesting note:

For weeks, ever since a grand jury declined to indict a white police officer in the death of Mr. Garner, many police officers have talked about feeling as if they are under siege.

Former Police Commissioner Raymond W. Kelly, speaking on ABC's "This Week" on Sunday, said that the antipathy stretches back to the campaign, after Mr. de Blasio ran on what Mr. Kelly called an "anti-cop" platform.

I might add that the Times's story contains pictures of Mr. De Blasio, the assassin (Ismaaiyl Brinsley), and  --  ready?  --  Al Sharpton, but none of the murdered policemen.

Immediate Reaction to the Police Assassination

A couple of things we are certain to hear a few thousand times in the next couple of days:

1.  "These killings were a senseless act."  What nonsense.  It made plenty of sense to Ismaaiyl Brinsley, the man who did it.  He had it in for the cops, in part, as his Instagram entry all but proclaims, because of the intentionally whipped-up hatred against them, and acted on his hatred.  Nothing senseless about it.

2.  "We should come together in the face of this tragedy."  This will be said over and over by the people who used the Michael Brown and Eric Garner deaths to inflame racial antagonism and grievance as much as they could.

It's only fair, however, to note one thing we will not hear:  We won't hear Ivy League law students complaining that their distress makes it impossible for them to take their exams.
This happens.

The Washington Post story contains these paragraphs:

Several hours before the shooting, a man believed to be the gunman wrote, "I'm putting wings on pigs today" on his Instagram page, the Post reported. The images showed a silver handgun with a wooden handle and a pair of camouflage pants and blue tennis shoes that appear to match those worn by the suspect as he was circulated by the media that show him being transported to the hospital. The photos use hashtags for Michael Brown and Eric Garner and appear to indicate that the shootings were an act of revenge.

"They Take 1 Of Ours ... Let's Take 2 of Theirs," the post said, before adding, "This May Be My Final Post."

The people who have been waging a non-stop hate campaign against the police will of course disclaim any responsibility.  And it appears to be true that the assassin was unbalanced.  But we all know there are unbalanced people out there, and that hate can set them off.

I see just now in his news conference that Mayor De Blasio is doing his best to fake mourning, but not quite making it.

Pakistan Resumes Executions

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Two convicted terrorists were hanged in Pakistan, AFP reports.

Pakistan hung two convicted militants in the first executions in six years and security forces killed more than 50 suspected militants on Friday (Dec 19) as the country's leaders vowed decisive action in the wake of a Taliban school massacre that left 149 people dead.

The bloody rampage in the northwestern city of Peshawar on Tuesday brought international condemnation and promises of swift, decisive action against militants from Pakistan's political and military leaders.

Pakistan's de facto foreign minister Sartaj Aziz told AFP the attack was his country's own "mini 9/11" and a game changer in its fight against terror.

Prime Minister Nawaz Sharif relinquished the six-year ban on the death penalty in terror-related cases two days after the school attack.

Two militants convicted of separate terrorism offences were the first to face the noose at a jail in central Punjab province, the province's home minister, Shuja Khanzada, told AFP.

As noted in today's News Scan, the states of Nebraska and Oklahoma have filed suit in the Supreme Court against Colorado over its marijuana law.  Here are a few random thoughts.

My first impression was that such a suit would be meritless, bordering on frivolous.  Of course a state is within its constitutional authority to not prohibit something.  After skimming quickly through the complaint, though, it is more nuanced than that.  The gist of the claim is that the Colorado law involves its government in affirmatively promoting a trafficking in marijuana that violates federal law.  I will have to study it more carefully to form an opinion on the merits of the complaint.

Procedurally, there is some inside baseball on the peculiarities of Supreme Court jurisdiction.

News Scan

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Murder Conviction in 'Stand Your Ground' Case: A Montana man is facing a minimum of 10 years behind bars after being found guilty of killing a German exchange student in what he believed to be a case of 'stand your ground.'  The Guardian reports that 30-year-old Markus Kaarma left his garage door partially open one evening with a purse exposed in the hopes of catching the person responsible for recent break-ins around the neighborhood.  When 17-year-old exchange student Diren Dede entered the  garage, Kaarma shot the teen with a shotgun, killing him.  Kaarma, claimed that he feared for his life that evening but the trial court found him guilty of deliberate homicide.  He is scheduled to be sentenced in February 2015. 

Surrounding States sue Colorado Over Legalized Marijuana: Two states have filed lawsuits with the U.S. Supreme Court in response to the recent legalization of marijuana in Colorado.  The Los Angeles Times reports that Nebraska and Oklahoma are citing federal anti-drug laws in an attempt to have the court overturn Colorado's law that permits the use of recreational marijuana.  Surrounding states which have seen an increase in marijuana being trafficking across their borders nities,are hopeful that the high court will enforce federal regulations.   

KS to Seek Death Penalty for Accused Killer: Prosecutors in Kansas have announced their plans to seek the death penalty against the man accused of killing three people at a Jewish community center earlier this year.  Breandaliss Gonzalaz of KSHB News reports that Frazier Glenn Cross, and admitted white supremacist, is accused of killing a 14-year-old boy and two other men in what authorities are describing as a vicious hate crime.  A preliminary hearing has been set for March 2,3, and 5, 2015.  

Being Believed and the Virginia Rape Hoax

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University of Virginia Professor and Hoover Institution Fellow James Ceaser has an insightful piece in the Weekly Standard on the disgraceful "journalism" and  -- let's face it  --  copious lying that went on in the Rolling Stone's reporting of a gang rape. It's a rape that, I have come to believe from the available evidence, is a 100% hoax. It is, in that respect, like the Duke lacrosse rape hoax of a few years back: It's not just that the rape did not occur as reported; it's that it never occurred, period.  

Kent noted in this post that rape is a serious, ugly crime, and that its victims deserve justice.  I could scarcely agree more.  

What has happened in this episode shows at least two things are needed to start down the path to justice:  Go to the police instead of Rolling Stone, and tell the truth.

And one more thing.  Going on a date is not rape, getting offended is not rape, and being groped is not rape (although it is a battery).  Intercourse without consent is rape.  Words have meanings, and credibility depends upon respecting this fact.

Confidence in the Police

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Kent's last post showed that the police are vastly more trusted than, among others, lawyers.  

Gallup also did a survey about confidence in the police in other wealthy countries around the world. The results demonstrate that the United States is slightly above the middle.  It's just below Norway, Denmark and Sweden, and just ahead of Portugal, the Netherlands, and the United Kingdom.

Specifically, 78% answered "yes" when asked, "In the city or area where you live, do you have confidence in the local police force, or not?" 

The survey is here.
Gallup does an annual survey asking, "Please tell me how you would rate the honesty and ethical standards of people in these different fields -- very high, high, average, or very low?"

Police officers took a bit of a hit this year, dropping six points on their "very high or high" rating, but they didn't change rank, still fourth of eleven.  It would tempting to attribute the drop to the highly publicized cases of late, but pharmacists had a drop nearly as large with no obvious cause.

The public seems a bit more cynical overall, with every occupation surveyed but one moving in the negative direction.  The one, believe it or not, is lawyers, with a small (and statistically insignificant) uptick of 1%.  Lawyers are still pretty low, though, seventh of eleven and only 21% "very high or high."  Frankly, given what some members of my profession do, I can't blame the people for that opinion.

Car salespeople and members of Congress bring up the rear.

And the most trusted of the professions ... ?

News Scan

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TX High Court Upholds Death Sentence: The Texas Court of Criminal Appeals has upheld the conviction and death sentence for a man found guilty of murdering two people in 2011.  Paul J. Gately of KWTX News reports that 25-year-old Ricky Cummings appealed his sentence claiming improper jury selection and exclusion of some evidence related to his background.  Cummings' brother was also charged with the murders, but he agreed to a plead guilty in exchange for a 20 year sentence. 

Police Chief Blames Realignment For Crime Increase: A Northern California police chief is blames the state's Realignment law for an 11% increase in violent crime in his city over the past year.  Ian Thompson of the Daily Republic reports that while the level of property crimes was stable, the level of violent crimes such as rape and murder increased significantly.  Suisun City Police Chief Ed Dadisho believes the Governor's Realignment law, which shifted thousands of felons to county jails, has put a strain on local law enforcement and probation officers and contributed to the increased crime.  Dadisho also believes  that recently passed Prop 47, which converts several felonies to misdemeanors, will also increase crime.

DNA Evidence Leads to Cold Case Arrests: Police in Virginia were able to make arrests in three separate cold cases with the help of newly processed DNA evidence.  WFMY News reports that police were able to solve three sexual assaults dating back to the 1980's, and make arrests in each case.  Virginia Beach Police acknowledged that budget cuts to the state's Department of Forensic Science has slowed down the process of analyzing DNA, but they are confident that in time more cold cases will be solved.  

Rape, PTSD, and Being Believed

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Abigail Hauslohner, WaPo Cairo bureau chief, has this poignant story of her long-ago victimization and its effects on her.  Along with her personal story, she has this comment on current controversies:

Today, what scares me the most about the debate raging over Rolling Stone's U-Va. rape story, and the magazine's apparent shortcomings in verifying it, is that the next woman who is raped at that school or any other might not come forward. Even if she does, people may be less likely to believe her, as her individual tragedy will probably be conflated with everyone else's opinion about this particular case.

So it pains me to think about how there are other women out there right now making the same "rational" decision that I did. According to the Rape, Abuse and Incest National Network, 97 percent of rapists will never spend a day in jail. That is largely because most rape victims, myself included, don't report the crime to the police to begin with.
I think this backlash effect is a real problem, not only with loose standards of journalism but also with ill-advised policies on college campuses.  Rape is a horrific crime causing long-lasting psychological damage.  At this point, we are in real danger of hurting rape victims by misguided efforts intended to help them.  The road to hell is paved with good intentions.
The Tennessee courts issued this press release earlier this month.

The Tennessee Supreme Court will hear oral arguments on December 18 in Nashville in an appeal by the State opposing the requests of several death row inmates who are seeking the identity of individuals involved in the lethal injection process.

The appeal arises from a challenge to the constitutionality of the Tennessee Department of Correction's execution procedures for lethal injection on various grounds by 11 of the state's death row inmates.

Terrorists Win, Freedom Loses Part II

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Kyle Smith from the New York Post puts it aptly:

Freedom, you were a nice idea, but anonymous hackers with a strange fondness for North Korea don't like you. So I guess you'll have to go.

After a single random online threat from an anonymous source the Department of Homeland Security finds not particularly credible -- a source that, for all we know, could be a group of basement-dwelling pranksters trying to sound like North Koreans -- Sony pulled "The Interview."

If someone purporting to be from the KKK calls the Weinstein Co. to order it to pull "Django Unchained" from any further distribution, will Harvey say, "Of course. We wouldn't want to offend you nice people"? Can the American Nazi party stop Universal Pictures from airing "The Blues Brothers" on TV by issuing an especially forceful tweet?

As an arts and entertainment company, Sony Pictures has better reason than most to understand the importance of creative freedom, especially when that creation carries a political character. The same is true of the theater chains. Their chicken-hearted response to the threats is a warning to everyone who works in the arts that controversy is best avoided. 

Bill Kristol from the Weekly Standard also makes some excellent points.

A Note on Death Sentence Rates

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The DPIC report to be released tomorrow, noted in the previous post, will also make a big deal about the number of death sentences per year being much lower than it was at the peak of 1996.  The regular drumbeat from the other side talking about sentencing and incarceration numbers as if they were independent of crime rates continues to both amaze and dismay.  Even worse is that people who should know better take this seriously.

Instead of the irrelevant number of death sentences, we should begin by looking at the number of sentences relative to the number of homicides.  Homicides rates have dropped nearly in half since the mid-90s, due in part to the tough sentencing that our opponents so strenuously opposed.  Using a two-year lag (death sentences over murders of two years earlier), the number of death sentences per 1000 murders this year was 38% of what it was in 1996.  That is a large drop, but not nearly as large as the irrelevant number you get comparing the simple count of sentences.

Why the drop?  Well, we have always said that the death penalty should be reserved for the worst of the worst.  In the early days after the restoration of capital punishment, it was not too unusual to see a death sentence for a simple robbery in which the victim was killed with no other major aggravating circumstances.  That is much less common today.  Prosecutors are more selective in seeking the death penalty, and juries are more selective in imposing it.

The other side has always said that is how it should be.  Now that it increasingly is that way, they cite that change as evidence that America is turning away from the death penalty.

Update:  David Savage has this story in the LA Times.

Update 2:  The Wall Street Journal, disappointingly, completely blows it by uncritically regurgitating the DPIC's spin.  Not a single mention of the drop in the murder rate over the same period.

Exoneration Inflation, Continued

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Of all the propaganda efforts of the anti-death-penalty movement, the most successful has been the notorious "innocence list," which can be found on the website of the Death Penalty Information Center.  Six years ago, Ward Campbell published in the IACJ Journal (Institute for the Advancement of Criminal Justice) an article titled Exoneration Inflation noting the various ways that people have been included on the list even though they had not been determined to be actually innocent or if their cases were simply irrelevant to the debate over the present system because they were sentenced under a different, since-abandoned system.

Surprisingly, three of the latter made it on to the notorious list just this year.  Three men convicted in Ohio for a 1975 killing and removed from death row just a couple of years later when the statutes were struck down have now been released altogether.  It is indeed regrettable that they spent so much time unjustly in prison, but the cases have nothing to do with the current death penalty debate.  They were not sent to death row under a law anything like any law now in effect in the United States or that has been in effect for 36 years.

In a report to be released tomorrow the DPIC will crow about a "record" number of "exonerations" of "former death row inmates," but the fact that these three were briefly on death row under a long-ago abandoned system has no relevance to our current capital sentencing system.

News Scan

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Accused Killer was on Probation: Authorities report that the Alabama man accused of killing an Auburn University football player over the weekend had a lengthy criminal history, and was on active probation at the time of the murder.  Jay Reeves of the Associated Press reports that 22-year-old Markale Hart is accused of murdering the college athlete after an argument broke out at a party.  Hart pled guilty in 2012 to a second-degree burglary charge and was originally sentenced to six years in jail, but under his plea agreement, he spent just six months behind bars with three years of probation.

Hundreds of Americans Kidnapped in Mexico in 2014: According to the FBI, nearly 200 Americans were kidnapped in Mexico in 2014, a figure that is alarming tourists and residents in several border towns.  Ildefonso Ortiz of Breitbart reports that according to a study conducted by the National Citizens Observatory, a kidnapping takes place every six hours in Mexico.  American citizens are often targeted for ransom paid by relatives in the states.  The U.S. State Department has issued a travel warning to Americans traveling to Mexico to avoid using highways at night.

OH High Court Upholds Death Sentence: The Ohio Supreme Court has upheld the death sentence for a man convicted of killing his ex-girlfriend and two young children in 2010.  Kathleen Maloney of Court News Ohio reports that Mark Pickens appealed his conviction and death sentence based on the claim that jurors were improperly questioned and that there was prosecutorial misconduct.  Pickens broke into his ex-girlfriend's home and killed her, her 9-month-old son, and a 3-year-old child she was babysitting.  Police report that the day prior to the killings, the woman accused Pickens of raping and beating her. 

Advance Directive

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How bad are relations between New York City's top officials and its police officers?  The Patrolmen's Benevolent Association is distributing a unique advance directive for its members to sign:

Don't Insult My Sacrifice

I, _____________________, as a New York City police officer, request that Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito refrain from attending my funeral services in the event that I am killed in the line of duty. Due to Mayor de Blasio and Speaker Mark-Viverito's consistent refusal to show police officers the support and respect they deserve, I  believe that their attendance at the funeral of a fallen New York City police officer is an insult to that officer's memory and sacrifice.

Tara Palmeri had this story Dec. 12 in the New York Post.

Terrorists Win, Freedom Loses

One thing we heard from people on the liberal side was that the country should be leery about becoming too security conscious in the wake of the 9-11 attacks.  The refrain became familiar:  Those who give up freedom for security will get neither.

I always thought that was an oversimplified and somewhat sloganeering approach to the dangers and complications of the post-9-11 world.  It has been given significant and ominous new meaning, however, by today's announcement by several large theater chains. As the WSJ puts it in a news release within the hour:

The largest theater chains in the U.S. have decided not to play Sony Pictures' controversial comedy "The Interview" on its planned Dec. 25 opening, said two people with knowledge of the matter.

Interrogation and the Law

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Former Attorney General Michael Mukasey has this op-ed in the WSJ:

Considering that the now-abolished Central Intelligence Agency interrogation program adopted in the wake of 9/11 was intended to protect the U.S. from another deadly attack, it is stunning to hear those now criticizing the program issue the solemn reminder that "we are a nation of laws"--while devoting little attention to what was actually in those laws. Odder still, among the critics those who wrote the laws seem to devote the least attention to them.

Take, for example, Sen. Dianne Feinstein, the prime mover behind last week's release of a more than 500-page " Executive Summary " of the report by Democrats on the Senate Select Committee on Intelligence. She attaches her own six-page foreword, beginning with the dutiful assurance on the first page that the "horror" of the television footage of the 9/11 attacks "will remain with me for the rest of my life." Thus credentialed, Sen. Feinstein proceeds to the task at hand: CIA personnel "decided to initiate a program" of "brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values." Setting aside for a moment the reference to "our values," that statement is demonstrably false.
The statement is false, he goes on to demonstrate, because the enhanced interrogation techniques used were not torture as defined in the law.

Terror Around the Globe

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It's a grim day in the news today.  Here are several articles from the WSJ:

Qasim Nauman, Safdar Dawar, and Saeed Shah report on the horrifying story of the Taliban in Pakistan taking over a school and methodically shooting schoolchildren in the head, killing 141 people.  That anyone with any political or religious cause, however fanatical, could deliberately and specifically target children for mass murder staggers the imagination.

Rebecca Thurlow and Lucy Cramer report from Sydney on the rememberance of the deceased hostages Katrina Dawson and Tori Johnson.  Mr. Johnson, the cafe manager, grabbed the perpetrator's gun when he saw an opportunity, beginning the termination of the siege and the freeing of all but himself and Ms. Dawson.  There is also a report that "Ms. Dawson was shielding her pregnant friend from gunfire."

Sony Pictures has received threats of terrorist attacks on showings of its comedy film "The Interview," which paints an unflattering portrait of North Korea's leader (who does such a good job of self-parody, he really doesn't need any help from Sony).  Ben Fritz, Danny Yadron, and Erich Schwartzel have this story.  Although the threats are "viewed as far-fetched by U.S. officials," they can't be taken lightly given the Aurora massacre.
Remember Edward Dorsey?  He was the defendant in Dorsey v. United States, in which the Supreme Court, 5-4, walked past the federal Savings Statute, 1 USC 109, to find that the Crack Pushers Bonanza Bill Fair Sentencing Act applied retroactively for the benefit of those convicted on or after the day it was signed into law, regardless of its effective date.

What happens when we make lighter drug sentencing retroactive?  Easy  --  the druggie gets out earlier.  And what happens then? Easy again  --  he gets back in business.  Why would he do anything else when he sees that we've lost our nerve?

The Sentencing Commission, in its rush to give breaks to drug dealers, has danced and pranced around their actual recidivism rate.  In fact, although the Commission understandably seems a bit reluctant to say so out loud, the drug recidivism rate is a staggering 77%.

With that in mind, I bring you today's news in the form of a press release from the United States Attorney's Office for the Central District of Illinois, home of our friend, Mr. "We Know He'll Go Straight From Now On" Edward Dorsey (emphasis added):

A New Forensic Tool for Rape Cases?

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Rachel Feltman reports in the WaPo:

A new study suggests that the microbes present on pubic hair -- which vary from person to person -- could be used as evidence in sexual assault cases. This particular research is in its early stages, so you probably won't hear about genital microbes in a courtroom anytime soon. But the study is just one example of the effort to turn the incredible diversity of the bacteria that live on human beings into a high-tech forensic toolkit.
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The researchers, led by Silvana Tridico from Murdoch University, took scalp and pubic hair samples from seven individuals (three male and four female, with one co-habitating couple in the mix). While hair from the head had around 50 kinds of bacteria a pop, and seemed to be influenced by the environment, pubic hairs had over 70 kinds of bacteria each, which were highly individualized. That's in line with previous studies on the vaginal microbiome, which has shown an unexpected diversity distinguishing one individual from another.

"The advent of DNA profiling has resulted in an increase of sexual offenders using condoms, which they take away, post-assault," Tridico said in a statement. "The implication of this present study is that the transfer of bacteria between victim and offender, in rape cases, may provide a new way of linking the offender to the victim, in instances in which no human DNA is transferred."

Facebook Presidential Announcement

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Former Florida Governor Jeb Bush announced he will "actively explore" running for President in an unusual way today -- by posting on Facebook.

Laura Meckler has this article in the WSJ on Bush's record as governor.

On crime, he backed a mandatory sentencing law for offenders using guns and enhanced the state's concealed carry law. He also signed the "stand your ground" law giving people the right to use deadly force when threatened, which later played a role in the debate over the shooting of unarmed black teenager Trayvon Martin. Mr. Bush has said he didn't think the law applied in that case.
Nope, it didn't, as we have noted on this blog many times.  The article's description of the law is not correct.  People have a right to use deadly force when threatened with death or great bodily injury in every state.  A "stand your ground" law abrogates the exception existing in some states that one has a duty to retreat rather than use force even if he has the legal right to be where he is.  When one person has another pinned on the ground, "duty to retreat" is a moot point.  The Zimmerman case was a standard self-defense case and would have come out the same way if the bill in question had never passed.

Also in the WSJ, Beth Reinhard and Patrick O'Connor have this story on the launch.  They note the question that everyone wonders about:

The broader question is whether the Bush family name is an asset or a liability. "I can't see the country electing another Bush," said Sen. Tom Coburn (R., Okla.) "There's still hard feelings about George W. So you start out with a negative because you've got the wrong last name. If he didn't have that last name, he'd be a pretty good candidate."
If life were fair, the family name would not matter either way.  In the famous words of President Kennedy, "Who ever said life was fair?"  Even so, I think he's a "pretty good candidate" anyway.
Kent noted, here and here, the pendency in the en banc First Circuit of a case in which a district court ordered the Commonwealth of Massachusetts to pay the massive costs of sex re-assignment surgery for a convicted murder in its custody. The lower court had ordered Massachusetts to foot the bill, and a divided panel of the appellate court affirmed.

Today, the en banc court reversed, 3-2.  Its opinion, which I just found and have not yet read, is here.

With all the modesty due from someone in my unschooled position, I must say I'm relieved. We hear again and again that prison costs are out of control.  If the Eighth Amendment requires the taxpayers to foot the bill for exotic procedures like this, then the idea of getting them under control has all but vanished. 

I don't doubt, or at least I will assume arguendo, that a person who feels he or she was born into the "wrong" sex has a medically serious problem.  But there has to be some rational limit on what the taxpayers are required to do for a person whose own violent criminal choices have put him in the state's custody, 

The Abbottabad Letters

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Here's an interesting development in the case of United States v. Khaled Al Fawwaz and Anas Al Liby in U.S. District Court in Manhattan. The court entered a scheduling order on motions regarding admissibility at trial of "documents recovered during the May 2, 2011 raid of Usama bin Laden's Abbottabad, Pakistan compound."  The text of the order follows the break.

I have the government's motion but not al Fawwaz's motion.  That is probably one of the many sealed documents not available to the public.  The government's motion says,

The Abbottabad Letters--including two authored by the defendant, himself--reflect his continued active participation in al Qaeda following eight years of incarceration in Iran. The Letters constitute powerful, direct, proof of al Qaeda's conspiracies to bomb and kill Americans, as well as Anas al Liby's knowing and intentional participation in them. Indeed, one can scarcely conceive of more powerful uncharged-acts proof than recent correspondence among bin Laden, his chief deputy, and the defendant about the defendant's continued participation in al Qaeda--including a 2010 letter from the defendant to bin Laden in which the defendant "ask[s] God to reunite me with you soon under the banner of Islam and the Islamic state and the banner of jihad." That is particularly true where, as here, the defendant's state of mind will be a central issue in dispute.
The legal argument relates to admissibility of "other acts" evidence under Federal Rule of Evidence 404(b).  The background paragraph begins with this statement:

On May 2, 2011, U.S. forces conducted an operation that resulted in the death of al Qaeda leader, and (formerly) charged co-defendant, Usama bin Laden.
I like that "(formerly)."  This is technically known in the trade as "mootness."

News Scan

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Prop 47 May Jeopardize California Drug Courts: California drug courts may soon become a thing of the past due to the recent adoption 47, which transformed numerous felonies, including drug possession and gun theft, into misdemeanors.  Marisa Gerber of the Los Angeles Times reports that drug courts provide judges with a cheaper and more effective alternative to sending addicts to prison, however, what holds drug court participants accountable is the fact that they will face a felony sentence if they drop out of the program.  With that threat gone due to Prop 47, experts believe addicts have no incentive to participate in rehab. 

Murderer Mistakenly Released: A California man who murdered his wife before killing himself Sunday afternoon had been mistakenly released from jail by a substitute judge.  Tim Daly of News 10 reports that 46-year-old Roberto Ceja-Martinez was arrested in late November for being a felon in possession of a firearm, marijuana cultivation, and violating a restraining order. He was in county jail for a week before a retired and substitute judge released him on his own recognizance.  Police say that Ceja-Martinez beat his wife to death Sunday morning before setting her body on fire.

Family of Executed Ohio Murderer Sues: The family of executed murderer Dennis McGuire has filed a lawsuit against a former expert witness on lethal injection claiming that he should have known McGuire would suffer during the execution.  The Associated Press reports that in addition to suing Dr. Mark Dershwitz, the family has also filed a lawsuit against the company responsible for distributing the drugs, claiming that they should have known the drugs would cause unnecessary and extreme pain if used during an execution.  McGuire was executed in January 2014 for the 1989 rape and murder of a pregnant Ohio woman.

Academia, Stark Raving Mad

I am seldom left speechless by the incantation of brain-dead platitudes by our friends on the Left  --  having grown accustomed to them  --  but this letter from a Harvard Law student has done me in. 

The gist of the letter is that law student demands for a postponement of exams to give them time to "recover" from the "trauma" of the events in Ferguson and Staten Island, and the grand juries' decisions not to indict the police officers involved, is not a sign of weakness but of strength.

If I attempted to paraphrase this mishmash of psychobabble and Marxism, I would be accused of trying to make its author look bad.  And it's not that I wouldn't be tempted, let me tell you; it's that I lack the ability.  On the other hand, I doubt anyone has the ability.

The NPR Broadcast and Sentencing Reform

I want to thank NPR once more for giving me the chance to chime in about why "sentencing reform" (translation: meat-axe lowering of sentences) is a bad idea.  

As the show was presented this morning (transcript here), my principal adversaries turned out to be Judge John Gleeson of the EDNY, and Prof. (and Sentencing Commissioner) Rachel Barkow of NYU Law School.

Each made an important point, and both are dead wrong.
In a free country, peaceful protesters get to say what they want, see Snyder v. Phelps.*  While I think people who wallow in belligerent grievance are all wrong, in both doctrine and temperament, they have the right to speak what is in their minds and hearts.  Indeed, sometimes, I'm grateful they do, so that the rest of us can hear it without a filter.

This is one of those times.  Listen for yourself.

*  N.B.  This does not apply on college campuses.

Good Tidings of Great Joy

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OK, that's an overstatement, but here's some welcome news, courtesy of Ed Whelan at NRO:

In January, the Senate Judiciary Committee will swing from a 10-8 Democrat-to-Republican advantage to an 11-9 Republican to Democrat advantage. Here are the eleven Republicans:

Chuck Grassley, Iowa (presumptive chairman)

Orrin Hatch, Utah

Jeff Sessions, Alabama

Lindsey Graham, South Carolina

John Cornyn, Texas

Mike Lee, Utah

Ted Cruz, Texas

Jeff Flake, Arizona

David Vitter, Louisiana

David Perdue, Georgia

Thom Tillis, North Carolina

Vitter, Perdue and Tillis are new to the committee (and Perdue and Tillis are new to the Senate). 

I am informed that NPR, on its "Morning Edition" tomorrow, December 16, will air a program about sentencing reform and, in particular, the politics surrounding that issue.  NPR was gracious enough to solicit my views, which are decidedly in the minority when stacked up against academics and Inside-the-Beltway interest groups. 

The show will be at 6 a.m., and then again at 8 a.m., EST.  It will also be available thereafter at

I've said a bit  --  actually, a whole lot  --  about this subject, see, e.g., here, so I won't belabor readers with any long preview.  I will say one thing for now, however: While I might be a lonely voice among the well-financed pro-inmate groups, I sincerely doubt that I'm lonely at all among the public.  

Consider what the answer would be if the public were asked this:  "Which comes closer to your view of the major problem with our criminal justice system  --  that we have too many people in prison for too long, or that we still have too much crime?"

Then consider one more thing.  Do you think there's a reason those self-same interest groups never commission a poll asking that question?

"Hands Up," for Real This Time

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Those eager to tar the police as racist thugs made full use of the "Hands Up" meme in the Ferguson episode, pushing the idea that Officer Darren Wilson shot and killed Michael Brown as Brown had his hands up in submission, trying to surrender.

Forensic and credible eyewitness accounts showed this story was fabricated. Brown, who moments earlier had undertaken the strong-arm robbery of a convenience store, did not have his hands up.  Instead, after having scuffled with the officer and attempting to wrest control of his revolver, Brown came at the officer again.  It was at that point that Wilson shot him.

The truth most fortunately persuaded the grand jury, but is simply irrelevant to the race hustlers and police haters who have never given up their fake slogan and, indeed, used it all over the country in demonstrations this weekend

News Scan

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CA to Grant Inmate Laborers Early Release: In an effort to combat severe overcrowding, California prison officials have agreed to make thousands of inmate laborers eligible for early release.  The Associated Press reports that roughly 4,300 inmates who work as janitors, cooks, and groundskeepers in prisons across the state will start earning two days off their sentence for every day they spend behind bars with 'good behavior.' A group of federal judges will need to approve the proposal before any inmates are made eligible for early release.

Mexican Man Charged in Recent Texas Killing: A Mexican man is in custody and facing murder charges after authorities say he kidnapped and murdered a mechanic over an alleged debt.  Ildefonso Ortiz of Breitbart reports that police believe 38-year-old Juan Miguel Miranda, along with a group of other men, kidnapped the victim from his home and shot him to death on the side of a rural road in a Texas city near the Mexican border.  Police believe the kidnapping may be in response to a debt over drugs, human smuggling, or illicit activity.  This is the third kidnapping murder in the area since October.

Texas Legislature Looks to Expand Gun Rights
: Lawmakers in Texas have proposed several bills which would expand the rights of gun owners.  Fox News reports that one of the proposed bills would allow residents to openly carry handguns in public.  Current law permits the public display of long guns such as rifles and shotguns, but not handguns.  Texas adopted laws permitting concealed weapons in 1995.  Since then, more than 800,000 people have obtained their concealed handgun license.  

A:  Not a whole lot.

The country seems to have figured out that the adult answer to the moral questions about aggressive interrogation is that, when thousands of innocent lives are at risk from an enemy who has shown he regards snuffing them out as the pathway to heaven, you do what you need to.  As today's Washington Post reports:

A new poll from the Pew Research Center is the first to gauge reactions to last week's big CIA report on "enhanced interrogation techniques" -- what agency critics call torture.

And the reaction is pretty muted.

The poll shows people says 51-29 percent than the CIA's methods were justified and 56-28 percent that the information gleaned helped prevent terror attacks.

Earlier this morning, Bill noted that the U.S. Supreme Court decided Heien v. North Carolina, No. 13-604, and copied an accurate summary of the decision from the Heritage Foundation. I want to explore a little further the important distinction between the substantive scope of the Fourth Amendment and the judge-made rule of exclusion of evidence found to have been obtained in violation of that amendment.

Today's decision answers a question that does not arise that often.  Is a search "unreasonable" within the substantive scope of the Fourth Amendment if the police officer acts on an interpretation of the law that is reasonable (and not contrary to any precedent existing at the time) but that a court subsequently finds to be incorrect?  The Supreme Court says no, 8-1, but both the majority and the concurrence note that this is a more demanding standard than the generous one provided for qualified immunity for civil liability.  As Justice Kagan puts it in the concurring opinion,

If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a "really difficult" or "very hard question of statutory interpretation." 
I look forward to citing the "really difficult standard" in a brief.  Justice Kagan goes on to say these cases will be "exceedingly rare."  That is perhaps a tad of an overstatement, but I do not expect them to be common.

This case got to the Supreme Court with this question because, as Justice Sotomayor notes in the dissent, "unlike most States, North Carolina does not provide a good-faith exception as a matter of state law."  An exception, that is, to the rule that once a Fourth Amendment violation is found the evidence must be suppressed.  States can, if they wish, have broader exclusionary rules than federal law requires, so they do not have to follow the various good-faith exceptions that the U.S. Supreme Court has recognized.    This is why CJLF passed on the case and did not file an amicus brief.  Our interest is in the broader exclusionary rule question, not the interesting but rarely occurring substantive Fourth Amendment issue decided today.

So here is the bombshell question not answered today but reserved for a future case:  Should the U.S. Supreme Court stop carving out individual good-faith "exceptions" to an overall rule of suppression of evidence and instead make "bad faith" a required element of a defendant's motion to suppress evidence?
The Supreme Court today decided Heien v. North Carolina, No. 13-604, involving the propriety under the Fourth Amendment of a police search.  The Heritage Foundation aptly describes the decision this way:

The Fourth Amendment prohibits (inter alia) "unreasonable" searches and seizures.  For the past 50 years, the Supreme Court has crafted rules for law enforcement officers to follow, in order to make it easier for the police to know what is and is not reasonable.  Additionally, the Court has construed that term to allow the police to make reasonable mistakes of fact, reasoning that the "probable cause" necessary to effect a search or seizure does not require an officer to be absolutely right, just "reasonable."

Today, Roberts, writing for an 8-1 Court, ruled that the term "reasonable" includes reasonable mistakes of fact and law.  An officer, who mistakenly but reasonably believed that the driver of a vehicle had violated a state traffic law by having only one working brake light, stopped the vehicle and ultimately found cocaine, which was used to convict the driver and passenger.  Because the officer's interpretation of the traffic law was reasonable, Roberts concluded, there was no Fourth Amendment violation.  Kagan wrote a separate opinion, joined by Ginsburg, to emphasize the narrowness of the Court's opinion.  Sotomayor dissented on the ground that, regardless of how the exclusionary rule should be applied, there is no "mistake of law" exception to the Fourth Amendment.
Yesterday the papers were filled with pictures of left-wing Massachusetts Senator Elizabeth Fauxcohontas Warren as the chief Senate critic of the omnibus budget bill passed by the House.  Now it turns out to be conservative Republicans Ted Cruz of Texas and Mike Lee of Utah who are holding up the train.  Kristina Peterson has this story in the WSJ.

Personally, I think it's unfortunate that House Republicans gave up so much leverage.  They could have funded the government for a few months and then next year, with control of both houses, structured continued funding so that it included legislative measures that President Obama does not like but does not oppose enough to veto and shut down major parts of the government.  For example, we could stop federal public defenders from engaging in litigation other than the types those organizations are created for.  See this post.

Cal. Supreme Nomination

Mark Pulliam has this article at City Journal, with a critical look at Gov. Brown's latest nomination to the California Supreme Court.
In Miller v. Alabama, the Supreme Court announced a new constitutional rule that murderers who are 17 years, 364 days old or less at the time of the crime cannot be sentenced to life without parole under a mandatory sentencing system, but they can receive such a sentence if the judge has discretion to consider mitigating circumstances and decides that LWOP is warranted.

Does that decision apply retroactively to require new sentencing proceedings for the under-18 murderers sentenced under mandatory statutes and whose convictions were affirmed in final judgments before the Miller decision?  The Supreme Court of Louisiana said no last year in State v. Tate, 130 So.3d 829.  Applying Teague v. Lane, 489 U.S. 288 (1989), the court said this is a procedural change, not a substantive one, and it does not qualify as a "watershed" ruling on the scale of Gideon v. Wainwright.

Last June, that court applied the Tate precedent to summarily reverse a grant of collateral relief to George Toca.  Today the U.S. Supreme Court took up Toca's case.  Unsatisfied with the way Toca's lawyer wrote the question presented, the Court rewrote them as:

1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case?
2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

Ohio Execution Drug Bill Advances

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The Ohio Senate yesterday passed, 20-10, HB 663 to provide confidentiality to the compounding pharmacies who supply drugs for lethal injection.  Opponents made the usual noise about transparency in government, but their real purpose is to facilitate harassment.  Jim Siegel and Randy Ludlow have this story in the Columbus Dispatch:

The pharmacies "have become subjected to not just criticism but downright attack, boycotts and picketing at their homes," said Sen. John Eklund, R-Chardon. "Consequently many of these pharmacies have become unwilling ... to subject themselves to that aggravation."
Earlier, the Senate caved in and deleted a provision that would have outlawed resale restrictions in contracts for sale of drugs.  Objections were made that the provision might have violated the Contracts Clause and might have caused European companies to refuse to export drugs to the United States.  Both objections could have been eliminated by making the provision applicable only to drugs manufactured in the United States and only to contracts made or renewed after the effective date.  The primary need for the provision is for pentobarbital, which is manufactured in the United States.  Even so, the sponsors chose to delete the provision altogether.  Alan Johnson had this story yesterday in the Dispatch.

The bill returns to the House, where it passed 62-27 last month.

News Scan

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Feds Allow Native Americans to Grow, Sell Marijuana: The U.S. Justice Department has announced that Native American tribes will be allowed to grow and sell marijuana on their land as long as they follow the same laws established in states that have legalized the drug.  Fox News reports that while many tribes are opposed to legalizing the drug on their land, three tribes in California, Washington, and the Midwest have expressed interest in selling it.  Federal law still prohibits the use and sale of marijuana in all 50 states.

Convicted Killer Sentenced to Four Life Terms: A Michigan man convicted of killing two discount store employees last year has been sentenced to four life terms plus 53 years for his crimes.  Gus Burns of M Life reports that habitual felon Lavere Bryant shot and killed two employees at a Family Dollar store in July 2013 during a botched robbery attempt. Life without parole is the most severe sentence a murderer can receive Michigan, a non-death penalty state. 

CA Police Chief Reports Increased Crime Under Prop 47: Fresno Police Chief Jerry Dyer believes that the recent uptick in crime that his city is experiencing has something to do with the passing of Proposition 47.  Jim Guy of the Fresno Bee reports that crimes such as aggravated assault, burglary, and auto theft have all increased exponentially in the last 28 days.  Proposition 47 reclassified several felonies to misdemeanors, and allowed thousands of inmates to apply for early release from state facilities.  

George Will's Arrant Nonsense

George Will is a brilliant man and a superb writer.  He is in many respects a conservative hero.  Yesterday, however, he published an overwrought piece in the Washington Post, "Eric Garner, Criminalized to Death."  The piece is illogical to the point of absurdity.  It also has some startling omissions.

That's quite a claim against someone with Will's reputation.  Bear with me.

News Scan

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Kentucky Police Make Cold Case Arrest: Police in Kentucky have arrested a man they believe is responsible for the cold case murder of an elderly woman in Ohio.  Lex 18 News reports that 56-year-old Daniel French is accused of kidnapping the woman from her retirement home, stealing her vehicle, and leaving her body in the trunk of her car.  French has been charged with murder, aggravated robbery, tampering with evidence, and abuse of a corpse.  If convicted, he faces a possible death sentence. 

Illegal Alien Accused of Sexual Assault: Utah police have arrested a man who they believe to be an illegal alien, after two young girls came forward and alleged that he sexually abused them.  Kurt Hanson of the Daily Herald reports that police also discovered that the man illegally purchased a green card and social security card in order to gain employment.  Miguel Gonzales-Frutos is currently being held in county jail on suspicion of sexual abuse of a child and identity fraud. 

Murder/ Kidnap Suspect Arrested After Standoff:  A California man suspected of murdering a woman and kidnapping his four young children has been taken into custody after a statewide manhunt ended on a San Diego freeway Thursday morning.  Tracy Bloom and Jennifer Gould of KTLA report that the police have yet to identify the woman they found murdered in the trunk of one of the family's vehicles.  Update:  She has been determined to be the murderer's wife and the mother of their four children.  The children are unharmed.  Relatives have claimed that there was a history of domestic violence in the family, however, police have yet to release any information regarding that allegation.

CJLF Brief in Jones v. Davis

CJLF has filed an amicus brief in the case where a federal district judge ruled that the long delays in executing murderers in California are a violation of the defendant's rights.  The delays are a violation, of course, but not of the defendant's rights.  The delays are a violation of the rights of the victims, which includes the family of deceased victims, under both a federal statute, 18 U.S.C. § 3771, and the California Constitution, Article I § 28. The remedy is for judges both state and federal to get off their duffs, stop tolerating stalling by the defense, and move these cases along.

If Virginia can execute the D.C. Sniper in less than six years from sentence to execution, other states can do the same no matter how complex the case.  In the rare case of actual doubt that we have the right guy, fine, delay as long as it takes to eliminate the doubt, and commute the sentence if it can't be eliminated.  In all other cases, i.e., the vast majority of cases, there is no need to delay more than six years.  That is plenty of time to resolve all genuine claims. 

After all, if we know to a certainty that the defendant is a murderer, there is no possibility of a miscarriage of justice in the sentence.  The question in the penalty phase is whether to give him what he deserves as a matter of justice or let him off with less as an exercise of mercy.  That is an important question, and its decision must be made carefully and reviewed carefully, but the outcome cannot be an injustice to the defendant.

The idea that we need to spend more time and resources reviewing the sentences of certainly guilty murderers sentenced to death than we spend reviewing the convictions of possibly innocent people sentenced to life in prison is absurd.

Rape, College, and Reporting Rates

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Are young women in college at greater risk of rape than women of the same age who don't go to school?  No, according to the National Crime Victimization Survey.  For the period 1995-2013, the rate of rape and sexual assault among women aged 18 to 24 was 6.1 per 1000 for students and 7.6 for nonstudents.  The Bureau of Justice Statistics released this report today, Rape and Sexual Assault Victimization Among College-Age Females, 1995-2013.

Numbers on sexual assault can vary widely depending on the definition of sexual assault used and whether the numbers reflect survey data or assaults reported to the police.  This report finds that reporting rates are much lower among students, 20% versus 32%.  The NCVS provides a valuable cross-check to reporting-based numbers such as the Uniform Crime Reports because it is a survey independent of police reporting.

Insider Trading

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Is it a crime to trade stocks on inside information?  Sometimes.  Not as often as the U.S. Attorney for Manhattan has alleged.  Christopher Matthews has this article in the WSJ on yesterday's decision by the U.S. Court of Appeals for the Second Circuit in United States v. Newman and Chiasson.

The appeals-court panel ruled that, in order to be found guilty of insider trading, a defendant must know a tip was illegally disclosed in exchange for a reward of "some consequence." The court also dismissed prosecutors' contention that career advice or friendship constituted a reward, saying that, under that logic, "practically anything would qualify."

Teenagers Are Not Children

Law professor Kevin Lapp has a new article up on SSRN titled "As Though They Were Not Children: DNA Collection from Juveniles."  Admittedly, my schedule these days leaves little time to read 55 page law review articles, so I have only skimmed the article this morning, but one theme of the article is commonplace and needs to be rebutted:  Teenagers are not children.

Yes, all lawyers know that the law treats those less than 18 years of age as minors and rarely makes any distinctions between teens, tweens, and young children (although not always, see, e.g., family law) but it frankly ought to.  A 17-year-old "child" has cognitive and developmental abilities that are clearly and categorically different than a 10 year old.  Indeed, the old common law understood this simple proposition when it held that minors 14 years or older were presumptively responsible for crimes and could be punished as adults. 

Now, of course, we are a more advanced society one might say, with our evolving standards of decency and reasoned moral responses.  These trendy new standards are based on things such as neuroscience which shows that the brain does not become fully myelinated until one's late 20s.  Never mind that we have no finding for how much myelination is necessary for reflective moral judgment nor have we tackled the much harder question of how much brain power and maturity is necessary for legal responsibility.  Presumably, one is not required to have an optimal brain since 20-year-olds can vote, sign contracts, be conscripted, and enjoy the other privileges of adult life.  They can even run for political office if they so desire.        
The WSJ has this response to the Senate Intelligence Committee report on interrogation, by former CIA Directors George J. Tenet, Porter J. Goss and Michael V. Hayden (a retired Air Force general), and former CIA Deputy Directors John E. McLaughlin, Albert M. Calland (a retired Navy vice admiral) and Stephen R. Kappes.

They dispute just about all the major conclusions.  They also have some telling comments on the way the report was prepared.

The Senate Intelligence Committee's report on Central Intelligence Agency detention and interrogation of terrorists, prepared only by the Democratic majority staff, is a missed opportunity to deliver a serious and balanced study of an important public policy question. The committee has given us instead a one-sided study marred by errors of fact and interpretation--essentially a poorly done and partisan attack on the agency that has done the most to protect America after the 9/11 attacks.
*                                                  *                                            *
How did the committee report get these things so wrong? Astonishingly, the staff avoided interviewing any of us who had been involved in establishing or running the program, the first time a supposedly comprehensive Senate Select Committee on Intelligence study has been carried out in this way.
...because the alternatives, Yale and Harvard, have come out with this nonsense op-ed. Stanford has least not yet.

The Yale and Harvard piece, penned by the deans of each school, is so fatuous it's hard to know where to start.  

It begins with this:

In the wake of the recent grand jury decisions in Ferguson and Staten Island, outrage and despair are reverberating across the nation, including at the law schools where we teach. Many of our students are struggling to reconcile their ideals of justice with what they perceive as manifest injustices in the criminal law system.

What is the documentation for the claim that "outrage and despair are reverberating across the nation?"  That Mother Jones is beside itself?  And are Yale and Harvard students so out of it that they discovered just this week that there are "manifest injustices in the criminal law system?"  Did they miss the OJ acquittal?  Were they underground when a jury let Casey Anthony get away with offing her daughter? Were they studying abroad when one state or another abandoned the death penalty for even the most grotesque crimes, and against the wishes of the voters?

The Accused Is Presumed Innocent...NOT

Remember when those tending to favor the defense in criminal cases were the first to lecture us (correctly, for once) about the presumption of innocence?

Then you must be as old as I am.

Welcome to the New Reality, as explained in this Washington Post op-ed:

Now the narrative [by "Jackie," the alleged University of Virginia rape victim] appears to be falling apart: Her rapist wasn't in the frat that she says he was a member of; the house held no party on the night of the assault; and other details are wobbly. Many people (not least U-Va. administrators) will be tempted to see this as a reminder that officials, reporters and the general public should hear both sides of the story and collect all the evidence before coming to a conclusion in rape cases. This is what we mean in America when we say someone is "innocent until proven guilty." After all, look what happened to the Duke lacrosse players.

In important ways, this is wrong. We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist. Even if Jackie fabricated her account, U-Va. should have taken her word for it during the period while they endeavored to prove or disprove the accusation.

The presumption of innocence is an anchor of liberty.  But liberty just ain't that important when Political Correctness is running the show.

Attacking America's Strength

Tell me how much of this you've heard in the last few weeks:

--  The police are "over-militarized' racist assassins who bully and murder citizens for no particular reason, except perhaps that they're black or act disrespectfully.

--  The armed forces (except for Bowe Bergdahl and Bradley Manning) are rapists and thugs.  They sexually harass, abuse and brutalize whomever they want  -- and that's just in this country.

--  Most recently, the personnel in the CIA are torturers who do it for fun, then lie about it to Congress.

If you've been living outside a cave, you've head all of it, over and over. And some, though hardly all, of the people you've heard it from are country's "leaders."

Q:  What do the targets of this acid have in common?

A:  The police, the military, and the intelligence services are the people who protect us when the Holier-Than-Thou crowd goes clueless.

Q:  What happens when you pour acid on the people who protect you?

A:  Ummm.......well...................

News Scan

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Prosecutors Seek Death Penalty in Cannibalism Case: Prosecutors in Indiana have announced their plans to seek the death penalty for a man accused of murdering his ex-girlfriend and eating several parts of her body earlier this year.  Fox 59 reports that Joseph Oberhansley admitted to police that he broke into the woman's home and stabbed her to death. He also confessed to removing and eating parts of her brain, heart, and lungs.  This isn't Oberhansley's first murder arrest.  At age 17, he spent time behind bars for killing his girlfriend and shooting his mother. He was released from custody in 2012 after serving just 14 years.

CA Gang Sweep Nets Multiple Arrests: More than 20 individuals have been taken into custody after a multi-agency sweep targeted a powerful Los Angeles gang with ties to the Mexican Mafia, labeled the most powerful prison gang in California.  Joseph Serna, Richard Winton, and Veronica Rocha of the Los Angeles Times report that roughly 800 law enforcement agents from the FBI, LAPD, IRS, and ATF arrested the known Big Hazard gang members on a variety of charges including drug distribution, assault, and weapons charges.  The gang has been active for at least 50 years, and police believe they have been responsible for several violent crimes and murders throughout the region.

Convicted Killer to be Released: A Michigan family is outraged after learning that the man who murdered their family member is set to be released from prison.  David Custer of WNEM News reports that Clay Hayward was convicted of second-degree murder in the death of 19-year-old Mark Schafer, a U.S. soldier who was home on leave.  Custer was sentenced to life in prison with the possibility of parole.  He has been granted parole after serving 21 years.  Unless the Bay County prosecutor can show that the parole board ruled improperly, Hayward will be released and remain on parole for at least four years.

D.C. Set to Legalize Pot...........Ooooops.

On election day, the District of Columbia overwhelmingly passed a ballot initiative that would legalize small amounts of recreational dope.  Potheads all over the city celebrated.

That was then.  As of today, Congress is set to effectively overturn the District's action.  It has the right to do so under the city's Home Rule Charter.  It is exercising that right because, apparently (and justifiably), it believes that the seat of the federal government should abide by federal law.  Imagine that.

As noted many times before, CJLF takes no position on pot legalization.  My personal view is that it should remain just as illegal as it is now, to wit, not a whole lot, but some.  Essentially no one in this city goes to jail for privately smoking a joint, and legalizing would send a message of de facto endorsement that society is better advised to withhold.

Executions in Missouri and Georgia

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As Bill notes, Georgia executed cop-killer Robert Wayne Holsey yesterday.  See also my post on the stay denials.

Also last night (technically the wee hours of this morning, as Missouri still sets executions dates as a single calendar day), Missouri carried out an execution.  CBS and AP have this story on both executions, considerably more balanced and informative than the NBC story linked in Bill's post.

A Missouri inmate was put to death early Wednesday for fatally beating a 63-year-old woman with a hammer in 1998, the state's record 10th lethal injection of 2014, matching Texas for the most executions in the country this year.

In Georgia, a man convicted of killing a sheriff's deputy moments after robbing a convenience store in central Georgia was executed Tuesday night.

The Missouri case involved Paul Goodwin, 48, who sexually assaulted Joan Crotts in St. Louis County, pushed her down a flight of stairs and beat her in the head with a hammer. Goodwin was a former neighbor who felt Crotts played a role in getting him kicked out of a boarding house.

Goodwin admitted committing the crime after his arrest.

Robert Wayne Holsey Executed

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Robert Wayne Holsey was executed in Georgia last night after the usual last-minute appeals were denied.  The NBC News story has the following 17 words tucked in, skipping lightly over the reason Holsey received his sentence: the clock ticked down to his execution for the 1995 murder of sheriff's deputy Will Robinson.

That was fast!

The less abrupt part of the story says nothing about Holsey's behavior.  It does, however, go on to blame Holsey's trial lawyer, the defendant's low IQ, and the barbaric people of Georgia:

"Robert Wayne Holsey is an intellectually disabled African-American man who was represented at trial by a chronic alcoholic who was more concerned about avoiding his own criminal prosecution than defending his client against the death penalty," his current lawyer, Brian Kammer, had said before the execution, which was carried out at 10:51 p.m. ET -- an hour after the court rejected the plea.

Kammer had argued that a U.S. Supreme Court ruling in May that found Florida's standard for proving intellectual disability was too strict also applied to Georgia's rules. "We will keep challenging the burden of proof that Georgia requires. It is too heavy," Kammer said late Tuesday night. "It's the heaviest burden of proof in the law and guarantees that the mentally ill will be executed." Holsey's appeals had also argued that he did not have effective legal counsel because his lawyer admittedly was drinking up to a quart of vodka a day. 

Usually, the way to have a lower court's decision reviewed by a higher court is to appeal.  In the U.S. Supreme Court, an actual "appeal" in the technical sense is usually not available, and a petition for writ of certiorari is used instead.

Sometimes, though, neither of these procedures is available, and the aggrieved party must resort to an "extraordinary writ," a petition for a writ of prohibition or mandate.  In form, this is a new suit by the petitioner against the lower court itself, designated the "respondent."  In practice, the opposing party in the lower court is designated the "real party in interest," and that party defends the lower court's action.  That avoids the need for a court to appear as a party, generally regarded as unseemly.

And now, for something completely different....

In re Ryan, U.S. Supreme Court No. 14-375, is a petition by Arizona's prison chief against the Ninth Circuit for sitting on a case after it should be over.  As usual, the opposing party in the court below, the Arizona Federal Defender on behalf of murderer Graham Henry, filed an opposition.  But yesterday, the Supreme Court asked the Ninth Circuit itself to file a response.
The Supreme Court of Georgia denied a stay of execution to Robert Wayne Holsey, who shot and killed Baldwin County Deputy Sheriff Will Robinson in December 1995.  A press release is here.  Holsey wanted the determination that he is not intellectually disabled reconsidered after Hall v. Florida.

The US Supreme Court subsequently denied a stay 7-2.  Justices Breyer and Sotomayor would have granted the stay.

The Garner No-Bill

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A commenter (paul, I believe) asked me a while back what I thought of the grand jury's declining to return an indictment in the Staten Island episode in which a policeman apparently choked (or otherwise pretty much directly caused the death of) Eric Garner.

I am reluctant to second-guess the work of the grand jurors, who had the opportunity to examine directly more evidence more closely than I have had.  In this instance, however, I will make an exception.  It seems to me, from the most important piece of evidence  --  the tape of the take-down  --  that there was probable cause to believe that the officer committed some degree of criminal homicide, and that he should have been indicted.

The differences between this case and Ferguson are legion.  The suspect offered no visible resistance, never punched the officer, never went for his gun, and never bull rushed him.  Most importantly, within seconds of the take-down, at least four other officers were on the scene, two of them sitting or kneeling on Garner.  At that point, the threat of physical harm to the officer (if there ever was one) had abated. The officer thus was required to have the self-control to release the hold.  He didn't.  That is at the minimum probable cause to believe that the officer committed criminal homicide.

If there was any racial animus here, it hasn't been proved.  And no serious person thinks the officer started the day intending to kill Garner or anyone else. But the tape shows what it shows.

See also the analysis here.  

Execution Delayed by Paperwork

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Lou Antonelli reports for the Mt. Pleasant (Texas) Daily Tribune:

The killer of Vicki Garner, who was murdered in Tyler in 1996, has delayed his date with the execution chamber in Huntsville for at least another month as a result of a paperwork snag.

Family members were bitterly disappointed when they learned the Texas Department of Criminal Justice (TDCJ) cancelled Robert Charles Ladd's execution - which was to have been held this Thursday, Dec. 11 - because of a paperwork delay.

"It was a crushing blow," Teresa Wooten, the sexual assault director at the SAFE-T women's shelter, said. "We had all worked so hard to set this date by the end of the year."



Colby Itkowitz at the WaPo's In the Loop posts these pictures from a tweet by Michelle Bachmann, who is leaving Congress at the end of the session.  Ms. Itkowitz says,

News Scan

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Death Penalty for Cop Killer: Prosecutors in Sacramento will seek the death penalty for the illegal alien accused of murdering two sheriff's deputies, seriously injuring a third and shooting a carjack victim during a multi-county crime spree in October 2014.  Sam Cohen of Fox 40 reports that Luis Bracamontes, who had a criminal record and had been twice deported, was the focus of a  manhunt after he was identified for for the murders, carjacking and shootings.  Bracamontes' wife, who accompanied him during the crime spree, is also facing several felony charges including murder, attempted murder, and carjacking. 

St. Louis Attack May be Hate Crime: Authorities in St. Louis, Missouri are asking for the FBI's help in investigating what they believe to be a hate crime against a Bosnian woman in the same neighborhood that a Bosnian man was beaten to death just days prior.  Fox News reports that the 26-year-old woman told police a group of African-American teenagers stopped her car and ordered her out of her vehicle after flashing a handgun. The suspects then pulled the woman from the car and beat her until she was unconscious.  The victim told police that one of the teens told her "You're Bosnian, I should just kill you now."  St. Louis police have seen an increase in crime in the recent months. 

Georgia, Missouri Set to Execute Convicted Killers: A Georgia man is set to be executed Tuesday afternoon for the 1995 murder of a sheriff's deputy.  David Beasley and Carey Gillam of Reuters report that 49-year-old Robert Holsey was convicted of shooting the officer in the head after he was pulled over following a convenience store robbery.  Missouri is expected to execute convicted killer Paul Goodwin at 12:01 am Wednesday, he was sentenced to death for the 1998 rape and murder of an elderly St. Louis woman.
The Claremont Institute's Center for Constitutional Jurisprudence will sponsor a teleforum on Friday at 1:00 p.m. EST on three cases argued before the Supreme Court this month.  The criminal case in the group is Elonis v. United States, the Facebook threats case, to be discussed by yours truly.

Also on the case will be Prof. Anthony Caso of Chapman University (formerly with Pacific Legal Foundation) discussing the Amtrak regulatory delegation case, and Karen Harned of the National Federation of Independent Business, discussing the notice and comment requirements for an administrative agency to change its interpretative regulations.  Because of these two cases, the forum is titled, "Will The Court Rein In The Out Of Control Bureaucracy?"  Dr. John Eastman will lead the discussion.

You can register your phone number here, and they will call you, or you can point your browser here, and listen via webcast.
The U.S. Supreme Court today decided Warger v. Shauers, No. 13-517:

Federal Rule of Evidence 606(b) provides that certain juror testimony regarding what occurred in a jury room is inadmissible "[d]uring an inquiry into the validity of a verdict." The question presented in this case is whether Rule 606(b) precludes a party seeking a new trial from using one juror's affidavit of what another juror said in deliberations to demonstrate the other juror's dishonesty during voir dire. We hold that it does.
This is a civil case, but the interpretation of FRE 606(b) will control in federal criminal cases as well and will be persuasive authority in states with similar rules.  The Court rejects the claim that the rule amounts to an unconstitutional denial of the right to an impartial jury but notes in one of those infamous, hedging footnotes:

3 There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented here.
The opinion is by Justice Sotomayor, unanimous.

Banned in Lexington

It seems that the Commonwealth's Attorney in Fayette County, Kentucky, Ray Larson, has taken some heat for posting some of our stuff and has taken the repost down.
Steve Hayward has a short response to Columbia Law School's decision to allow students to postpone their exams if they feel too "traumatized" by the grand jury no-bills is Ferguson and Staten Island:

Paul [Mirengoff's] two posts on the tender mercies our colleges are showing to traumatized students being excused from exams sent me back to the wisdom of my mentor M. Stanton Evans, who liked to remind young people:

"My generation had it much rougher than yours. Our malls weren't covered. We didn't have remotes so we had to get up and change the channel and we had to go through the whole Goldwater defeat without grief counselors."

Oh, the Sensitivity of It All...

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I wish this were parody.  It isn't.

Columbia Law School has allowed students to postpone their exams because of the "trauma" of the non-indictments in the Ferguson and Staten Island cases, in which policemen killed two unarmed black men in the process of trying to arrest them. The Wall Street Journal has the story.

If memory serves, this Law School is part of the same Columbia University that has hired police killer Kathy Boudin as a professor.  I wonder if the students in her class are "traumatized" and free from exam taking.

News Scan

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LAX Shooter Awaits Death Penalty Decision: Federal prosecutors expect the Attorney General to decide by by January 2015 if  the death penalty will be sought against the man accused in the deadly shooting rampage at Los Angeles International Airport in 2013 that resulted in the death of a TSA agent.  Brenton Garen of Westside Today reports that 24-year-old Paul Ciancia has been charged with 11 counts including murdering a federal officer, two counts of attempted murder, and committing acts of violence at an international airport.  Attorney General Eric Holder has the final say in the death penalty decision. 

MO Supreme Court to Hear Gun-Rights Case: The Missouri Supreme Court is set to hear argument this week from a convicted drug dealer who believes he has the right to possess a firearm under a newly passed state amendment.  David A. Lieb of the Associated Press reports that the new legislation was adopted to strengthen gun rights for Missouri citizens.  It states that any restriction from gun ownership 'shall be subject to strict scrutiny'.   But law also leaves in place previous measures preventing convicted violent felons from owning guns.  Supporters of the law are quick to point out that it was designed to protect the rights of law-abiding citizens, not to restore rights to convicted felons.

A Tale of Two Grand Juries

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Aaron Blake notes at the Fix, WaPo's political blog, that views about the "no bill" in the New York case of Eric Garner are less favorable to the police and less polarized by race than in the Ferguson case. 

USDoJ and Racial Profiling

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Sari Horwitz reports in the WaPo:

The Obama administration on Monday will formally announce long-awaited curbs on racial profiling by federal law enforcement, but the new rules will not cover local police departments, which have come under criticism in recent months over allegations that their officers profile suspects.

Attorney General Eric H. Holder Jr. has expanded Justice Department rules for racial profiling to prevent FBI agents from considering gender, national origin, religion, sexual orientation and gender identity, in addition to race and ethnicity, when opening cases. The department also will ban racial profiling from national security cases for the first time.

Hmmm.  If A beats up B, the FBI is not going to consider any of those things in deciding whether to charge a federal hate crime or leave it to the local authorities as a routine assault case?  Of course the FBI should not engage in "invidious discrimination," charging a person with a crime or a greater crime because of animus against that person based on some characteristic irrelevant to the situation.  But sometimes these factors are relevant.

Can the TSA consider the fact that a person is an adherent of a fanatical strain of Islam and comes from a hotbed of terrorism when deciding whether to screen him a bit more carefully before letting him on an airplane?  Yes, the TSA is exempt.  So is such consideration legitimate or not?  Sounds like DoJ is straddling the fence, and the fence is made or barbed wire.

Should I Feel Lonely?

Not to worry  --  this post is not psychobabble about my feelings.  It's about a question I was asked by two journalists with whom I spoke recently.

The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform.  Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and  --  most important for journalists  -- curious.  

Each asked me the same question:  Whether, as an opponent of sentencing reform, I feel lonely?

I told them I don't.

Make That 54-46

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To the surprise of no one, Republican Bill Cassidy ousted incumbent Mary Landrieu in the Louisiana U.S. Senate runoff Saturday.  Mark Barabak has this story in the LA Times.  Doesn't look like the Veep will be using his tie-breaking vote much in the next Congress.  Until just before the election, there appeared to be a good chance that His Superfluous Majesty (as Benjamin Franklin would have had it) would have made a real difference.

Truth and Journalism

Bill noted yesterday how a hoax was printed as fact to bolster a position on the campus rape debate.  Before commenting on the story, let me make very clear that CJLF has a long history of supporting the rights of victims of rape.  It is a terrible crime, and the victims deserve justice.  We have further supported shield laws to protect victims from being revictimized.  Our commitment to victims' rights remains undiminished.  That said, however, the current movement regarding campus sexual assault is going to extremes that will do little to help actual victims, threatens grave consequences against people who have done nothing wrong, and may well end up hurting real victims as a backlash creates renewed skepticism of those who come forward.

Now, Rolling Stone never has been an exemplar of objective journalism, but reporting inflammatory allegations without the most elementary fact-checking is well below the standard we should expect of any national magazine.  An editorial in the Wall Street Journal today pinpoints the underlying problem here:

The larger problem, however, is that Ms. Erderly was, by her own admission, looking for a story to fit a pre-existing narrative--in this case, the supposed epidemic of sexual assault at elite universities, along with the presumed indifference of those schools to the problem. As the Washington Post noted in an admiring profile of Ms. Erdely, she interviewed students at several elite universities before alighting on UVA, "a public school, Southern and genteel."
In other words, Ms. Erdely did not construct a story based on facts, but went looking for facts to fit her theory. She appears to have been looking for a story to fit the current popular liberal belief that sexual assault is pervasive and pervasively covered-up.
Sudhin Thanawala reports for AP:

A California appeals court Wednesday struck down a state law that requires the collection of DNA from anyone arrested on suspicion of committing a felony.

The 1st District Court of Appeal said Wednesday that the state Constitution's ban on unreasonable search and seizure prohibited the DNA collection using a cheek swab. The law was approved by voters in 2004.

*                                                   *                                          *

There was no immediate order stopping police in California from continuing to collect DNA, and the appellate court's ruling could be appealed.

*                                                   *                                          *

The appeals court in Wednesday's ruling was reviewing an earlier decision it issued on the law in light of a 2013 U.S. Supreme Court ruling that upheld a similar Maryland law. The earlier ruling also found the California law unconstitutional.

The appeals court said the Supreme Court decision did not apply in this case in part because of significant differences between Maryland's law and California's law. Maryland's law, for example, only allows the DNA of suspects to be tested after they have been charged with a crime. California's law allows testing even before charges are filed. The California law also applies to all felony suspects who are arrested regardless of the seriousness of the alleged crime.

The reason that there is no order stopping police from collecting is that this is an appeal from a criminal conviction and not a civil action for an injunction.

Lying About Death Penalty Alternatives

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Today, more so than usual it seems, I'm being pelted with some of the less than truthful statements our adversaries employ. The one I'll discuss in this post is many years old; the reason I bring it up now is the fresh evidence of the degree of cynicism our opponents are willing to indulge. 

For years, abolitionists have told us that we'll be just as safe, or perhaps safer, if we replace the death penalty with LWOP.  This pitch has become so standard that it's now part of Gallup's polling on the question (emphasis added):

If you could choose between the following two approaches, which do you think is the better penalty for murder  --  the death penalty or life imprisonment, with absolutely no possibility of parole.

In fact, the leaders of the abolitionist movement have zero intention of supporting life imprisonment with absolutely no possibility of parole.  If there were any doubt about this, it was brought to an end by this article from the Marshall Project. The piece is partly about William Blake, a murderer convicted in New York, sentenced to LWOP (since that state has no death penalty), and held in solitary because of his dangerousness.  The article's final paragraph states (emphasis added):

William Blake has said that while he cannot bring himself to take his own life, he would have welcomed the death penalty...had he known what a lifetime in solitary confinement would be like. Perhaps the time will come when people like Blake--and the American public--are not forced to choose among such monstrous alternatives. In the meantime, it will be a shame if people who oppose state-sponsored death continue to advocate for state-sanctioned torture. 

My hat is off to the authors for, at least, their candor.
Kevan Brumfield murdered Police Corporal Betty Smothers in Baton Rouge, Louisiana in 1993.  He went on trial in 1995.  Six years earlier the Supreme Court decided in Penry v. Lynaugh that mental retardation (now called intellectual disability) is a mitigating factor that the jury must be allowed to consider but not a categorical exclusion.  Brumfield's lawyers put on no evidence of retardation, instead arguing other factors as mitigation, and he was sentenced to death.

Seven years after the trial, the Supreme Court decided in Atkins v. Virginia that retardation would be a categorical exclusion after all.  The high court did not apologize for its flip-flop.  On state collateral review, the trial judge denied the petition on the basis of the trial record.

What to do on federal habeas?  The deference standard of 28 U.S.C. §2254(d) allows a federal court to grant relief despite a state court's denial on the merits if the state court's "adjudication of the claim ... (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 

But what if the argument is that the state court's unreasonableness was in not allowing evidence, rather than assessment of evidence?  Can a rule to deal with that issue be crafted without opening the door to federal micromanagement of state collateral review or the wholesale relitigation that the AEDPA reforms were enacted to prevent?

Lies Piled Upon Lies, a/k/a the Culture War

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Let's face it, white males are a bunch of pigs.

Or so the Culture Warriors would have it.

The problem is that, unable to make this narrative stick by telling the truth, the thing to do is, ummm.......make stuff up.

The Internet ink was not dry on my last post about the Ferguson "hands up" hoax aimed at white police officer Darren Wilson when I found in my inbox this article from today's Washington Post.  It would seem that the breathlessly reported and appalling story of a gang rape at a University of Virginia fraternity was also a hoax. The Post story does not use that word, but it leaves next to no doubt that a hoax is what it was.

What's going on?

News Scan

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Prop 47 Leads to Surge in Crime: Authorities in Humboldt County, CA report that since Proposition 47 passed in November, forcing the release of 35% of county jail's inmate population, police have been dealing with a surge in criminal activity.  Tyler Dahlgren of KRCR News reports that Prop 47, which reduced penalties for a number of crimes, has allowed dozens of criminals to appeal their sentence and get back on the streets to commit more crimes.  Police are reporting an increase in burglaries, thefts, and vandalism just weeks after the proposition passed.  

Habitual Rapist Accused in Another Assault: An Ohio man with a lengthy record of sexually assaulting women is behind bars again after being accused of raping a woman at knifepoint.  Mark Gokavi of the Dayton Daily News reports that 40-year-old Michael Cohen, who once raped a woman just an hour after being released from jail, was released from prison in April 2014 after serving roughly 8 ½ years for a rape conviction, authorities now believe that a few months later, he raped one woman at knifepoint and kidnapped another in an attempt to sexually assault her.  Cohen is currently being held in county jail without bond.

Jury Recommends Death for Murderer: A Delaware jury has unanimously recommended that convicted double-murderer Otis Phillips be sentenced to death for his crimes.  Sean O'Sullivan of The News Journal reports that Phillips, who was found guilty in a third unrelated homicide last month, allegedly killed one of his victims in an attempt to keep him from testifying at an upcoming murder trial and a second victim by mistake.  The judge presiding over the case has the final sentencing decision, and is expected to announce it in the near future.    

Kent noted that Truth Matters in debates both about specific cases and the overall theories we employ to construct the criminal justice system.

In the short run, of course, telling the truth can be, uh, inconvenient, because it might mean that your larger plans will be stillborn.  (Hence, e.g., the critical mendacity that, "If you like your health insurance, you can keep your health insurance").

The reason that Ferguson escalated from an incident into The Cause was quite specific:  Michael Brown was shot even though he wasn't resisting the officer.  He was, to the contrary, trying to surrender, using the classic gesture of hands up. That's why the original (and continuing) rallying cry is, "Hands Up, Don't Shoot."

Only mounting evidence shows that Brown's hands were not up and that, instead, he was bull-rushing the cop after having tried moments earlier to wrestle away his gun. See this essay and this one.

Q:  So what do the protesters have to say now about "hands up"?

A:  Never mind, you have to buy our agenda anyway.

News Scan

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Habitual Felon Accused of Attempted Murder: A Florida man with a criminal history dating back more than a decade is behind bars yet again after authorities say he shot a member of the U.S. Navy who was visiting his mother on Thanksgiving.  Emily Miller of the Sun Sentinel reports that 24-year-old Terrance Jolly, a habitual criminal, allegedly shot the man after authorities say he attempted to break up a fight outside of his mother's apartment on Thanksgiving afternoon.  Jolly's priors include battery, assault with a deadly weapon, and burglary.  His currently in jail facing charges of attempted murder and possession of a weapon by a felon.

Sheriff Denounces Eric Holder's Response to Ferguson: Milwaukee Sheriff David Clarke recently gave a speech at the National Press Club in Washington D.C. focused on U.S. Attorney General Eric Holder's handing of the Michael Brown shooting.  Sheriff Clarke's speech is at this link:
includes his statement that Holder threw law enforcement under the bus to curry favor with racial groups such as the New Black Panther Party.  The Sheriff doesn't mince words. 

Lifer Charged With Another Murder: A Michigan man already serving a life sentence for a murder he committed more than two decades ago has been charged with his prison cellmate.  Andy Hoag of M Live reports that officials believe that 51-year-old Steven Sandison murdered his cellmate, a child molester, in late October.  Sandison is currently serving an LWOP sentence for a 1991 murder.  If he is convicted of this second murder he will receive another LWOP sentence. 

News Scan

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Convicted Sex Offender Accused of Murder: A Florida man, who authorities say cut off his court-ordered GPS monitoring device, has been arrested for the recent murder of a woman and the sexual assault of her 10-year-old daughter.  The Associated Press reports that 34-year-old Donald Davidson, a convicted sex offender, was arrested early Tuesday morning after police say he was caught driving the dead woman's vehicle.  Davidson was recently released from prison after serving a four-year sentence for child molestation. 

Appeals Court Halts Execution: A federal appeals court in New Orleans has halted the execution of a Texas man that was scheduled to take place later today.  David Montgomery of the New York Times reports that the 5th Circuit U.S. Court of Appeals postponed the execution of 56-year-old Scott Panetti in order to allow more time to consider issues surrounding the case, particularly whether Panetti's mental illness disqualifies him from execution.  Panetti was sentenced to death for the 1992 murders of his wife's parents.  Had the execution gone as planned, he would have become the 11th person executed by the state of Texas in 2014. 

Convicted Murderers Caught Sneaking Across U.S. Border: Border Patrol agents have arrested two convicted murderers after the pair attempted to illegally cross the border on November 24.  Kristin Tate of Breitbart reports that the two men, who happen to be brothers, were convicted of first-degree murder in Illinois and each served between six and ten years before being deported back to Mexico. 

USCA5 Grants Stay to Panetti

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The U.S. Court of Appeals for the Fifth Circuit issued this order in the case of schizophrenic Texas murderer Scott Panetti:

We STAY the execution pending further order of the court to allow us to
fully consider the late arriving and complex legal questions at issue in this
matter.1 An order setting a briefing schedule and oral argument will follow.

1. See 28 U.S.C. § 2251(a)(3); McFarland v. Scott, 512 U.S. 849, 858 (1994).
See also my prior posts here and here.

Nathan Koppel has this article in the WSJ.  Dustin Volz has this article in the National Journal.

Missing Data on Justifiable Homicides

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The quality of any study cannot be any better than the quality of its data.  Modern statistics computer programs can produce a dazzling array of colorful charts and graphs, but if the input data are faulty, it's all pretty nonsense.  As we used to say when I was an IT guy, "garbage in, garbage out."

The main source of data for people studying crime has long been the Uniform Crime Reports compiled by the FBI.  These numbers are initially reported by local police agencies.  There are some known problems and some controversies.  Collection and submission of data by the agencies is voluntary.  There are even charges of intentional manipulation in some cities.

Then there are the Supplemental Homicide Reports.  These provide much more detail on homicides, but compliance is even more spotty.  Rob Barry and Coulter Jones report in the WSJ that there are yawning gaps in the data on justifiable homicides by police.  For example, Fairfax County, Virginia, did not report justifiable homicides at all because, well, these are crime reports and justifiable homicides are not crimes.  Of 105 large police agencies contacted by the reporters, justifiable homicides from 35 of them did not appear in the FBI records at all.

What's a researcher to do?  You must know the limitations of your data.  I once started a project using the SHR where a key data point was the circumstance of the homicide.  I had to shelve it because so many cases had that data point missing that the input data were essentially worthless.  Bad research producing very wrong results can be done by people unaware of the limitations of their data.  Of course, if the researcher is actually an advocate seeking to bolster the Politically Correct position on a controversy, then truth doesn't matter.  Damn the limitations, full speed ahead!

News Scan

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Realignment Offender Suspected of Murder: A California man who was recently released from custody and placed under Post-Release Community Supervision (PRCS), under Governor Brown's Realignment law, has been arrested and booked on murder charges.  The Daily Bulletin reports that the man allegedly stabbed the woman multiple times in a hotel room and left her for dead Saturday night.  Police believe the victim and the suspect were acquaintances, but have yet to determine a motive for the killing.

CA Convicts Man Under New Revenge Porn Law: A California man has been ordered to spend a year behind bars after becoming the first person convicted under the state's new revenge porn law.  The Guardian reports that Noe Iniguez was convicted on two counts of violating a restraining order and one count of violating the state's revenge porn law after authorities say he posted topless photos of his ex-girlfriend on her employer's Facebook page.  The law, which was enacted in October 2013, makes it illegal to post identifiable nude photos of people online without their consent.

Teens Beat Man to Death Near Ferguson: A group of teenagers have been arrested and charged with murder after police say they beat a man to death near Ferguson, Missouri.  Fox News reports that 32-year-old Zemir Begic, a Bosnian immigrant, was driving with his wife and a friend when their vehicle was surrounded by a group of teens who began banging on the vehicle with hammers.  When Begic stepped out of the vehicle to confront the group, they savagely attacked him with the hammers, resulting in his death.  A youtube video posted by an eyewitness, includes her statement that just prior to the attack she saw teens running around the area yelling "kill the white people".  Commenting on the murder, the St. Louis Police Chief astutely observed, "There is no indication that the gentleman last night was targeted because he was Bosnian."  The victim was a white man.    

Elonis Teleforum Podcast

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My FedSoc Teleforum on the Elonis Facebook threats case argument yesterday is now available as a podcast.

Jones v. Chappell Brief

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The California Attorney General yesterday filed this brief in Jones v. Chappell, the case of the strange District Court order reaching out to declare California's death penalty unconstitutional because of delays.

Warden Chappell has left the building, and the acting warden is Kelly Mitchell.  The case will be Jones v. Mitchell for the time being.
Maria Cheng reports for AP:

Scientists say there is "overwhelming evidence" that a skeleton found under a parking lot is that of England's King Richard III, but their DNA testing also has raised questions about the nobility of some of his royal successors.
For prior posts on this blog enter "Richard III" in the search field at the upper right.

Facebook Threats Argument

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Robert Barnes has this report in the WaPo on the oral argument in the Facebook threats case, Elonis v. United States.

As Bill noted earlier, I did a teleforum for the Federalist Society on the case.  It should be available as a podcast tomorrow.  We will post a link here then.

One thing that is clear from the argument is that counsel for Elonis abandoned the position that a subjective purpose to intimidate is constitutionally required.  The mental state argument is about what kind of knowledge is required -- knowledge that the statement would be perceived as a threat, knowledge of a grave risk it would be so perceived (i.e., recklessness), or just knowledge of what the statement said, combined with an objective determination that a reasonable person would see it as a threat.
The country, and individual citizens, face a choice about what should be done now in Ferguson.  I see two directions.

One is to fan the ideological slapstick that claims to support "healing" while actually supporting riots.  We'd do that by seeking what will be called a "national conversation" about police bigotry and violence.  Of course it won't directly be called "police bigotry and violence;" it will be put in code, but we'll all understand it. The people dominating this one-way "conversation" will have only one outlook, to wit, grievance and entitlement. It's already started, today, at the White House.

I suggest a different direction, and I want to make a specific proposal for action:

People of all races should organize, go to Ferguson, and help the victims of that city's lawlessness rebuild.  Stores, some owned and run by blacks and others by whites, were torched and looted.  There have been many scenes of this; one of them is here, picturing, ironically, the looting and arson of the convenience store from which Michael Brown stole cigarettes moments before his fatal encounter with Officer Darren Wilson.

We don't have to lie down for a phony, guilt-stoking "national conversation" about how rotten the country is.  Instead, we can do something, as we have so often in the past, to show its hallmark generosity.

The Suddenly Missing Quotation

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In the rioting and other snarling about the Ferguson prosecutor's failure to obtain an indictment (or goad the grand jury into returning one), I have yet to hear, even once, a quotation I otherwise see repeatedly, especially from those proclaiming themselves civil libertarians.  I thought I would dust it off just to jog their memories:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States295 U.S. 78, 88 (1935)

It is true that the Missouri prosecutor will not win a case against Darren Wilson. But on the state of the evidence, it would appear, at least to those without a predetermined stake in flaying the police, that justice, though in some ways tragic, has been done.

News Scan

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Convicted Killer Gains Early Release: A Wisconsin man convicted of murdering a six-year-old girl is set to be released from state prison after serving just 26 years of his 40 year prison sentence.  The Associated Press reports that 66-year-old Vince Fisher was found guilty of second-degree murder after authorities say he sexually assaulted the young girl before shoving a plastic ball down her throat, which resulted in her death.  Fisher will be required to live in a transitional residence upon his release and will be monitored by a GPS device.  

Sheriffs Blame Realignment for Jail Drug Problem
: County jails across the state of California are experiencing an increase in the amount of drugs being smuggled into their facilities, and many Sheriffs believe Governor Brown's Realignment policy is to blame.  CBS News and the Associated Press report that, with a parole violation only punished by ten days in jail under Realignment,  parolees are getting arrested in order to sneak drugs into jails.  Sheriffs report an increase in the volume of drugs being smuggled into jail since the law took effect three years ago.  Berkeley Professor Franklin Zimring said that Sheriffs are just "playing up" the drug smuggling problem because they opposed the law.  

PA High Court Upholds Death Sentence: The Pennsylvania Supreme Court has upheld the conviction and death sentence for a man convicted of kidnapping and murdering a college athlete nearly 20 years ago.  Larry Miller of The Philadelphia Tribune reports that Arthur Bomar challenged his sentence after alleging he lawyer was ineffective and his trial had procedural errors.  Bomar was found guilty of kidnapping, rape, and first-degree murder after DNA linked him to the killing.

Paul Cassell has this post at the Volokh Conspiracy on the testimony of a witness to the Ferguson shooting whom he deems particularly credible.

When Pigs Fly

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I have often written about how psychological mush threatens to wash away the standards without which we are unlikely to continue to have a functional culture, much less a functional law, and still less a functional criminal law.

Some of the erosion has taken the form of the newly-minted Freedom Not To Be Offended (this replaces the very-old-fashioned freedom of speech).  Some of it has taken the form of simply Making Stuff Up and then protesting (or rioting) when you can't sell the Stuff You Made Up (see, e.g.,  Kent's Ferguson-related post titled, Truth Matters).  

But some of the washing away of anything a normal person might regard as sanity can show up in unexpected places, such as Seat 19D, now occupied by the "emotional support animal."
Kent wrote about the Facebook threat case, Elonis v. United States, in this post. The case was argued before the Supreme Court this morning, and Kent will describe and analyse the argument in a Federalist Society teleforum broadcast this afternoon at 4 pm Eastern Time.  The call-in number is 888-752-3232.

For Appointment of Counsel: Get Moving

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Kent may have more to say about one of the cert. denials this morning, that being in Redd v. Chappell, No. 14-6264.

Justice Sotomayor, joined by Justice Breyer, wrote a statement respecting denial of cert. The State of California has not appointed counsel to represent this capital inmate in his state habeas proceedings seventeen years after he was sentenced to death and four years after the completion of his direct appeal. This is so notwithstanding a state statute that requires such appointment.  (The state court prohibits pro se submissions when the inmate has a continuing right to representation).

I will leave it to others to decide whether there should be a right to a lawyer to pursue collateral relief after the defendant has received one comprehensive and fair review of his claims.  But when California by statute provides for such a right, it's obvious that the state needs one more statute  --  one that provides for appointment to be made within 90 days of the time direct review becomes final, and that the habeas brief be filed a maximum of six months after that.  The penalty for any lawyer who refuses court appointment or misses the deadline will be suspension from practice for one year.

There might be good reasons for some aspects of the delay in capital cases. There is none for appointing counsel and getting your work done.  Abolitionists live off the delay they egg on.  It is time for this game to stop.

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