January 2015 Archives

Sohrab Ahmari has this article in the WSJ:

"It has been described as one of the most dangerous post-mortem examinations ever undertaken in the Western world, and I think that's probably right."

So testified forensic pathologist Nathaniel Cary on Wednesday, the second day of the inquiry into the 2006 poisoning death of Russian defector Alexander Litvinenko. The proceeding, held at the Royal Courts of Justice, aims to examine the circumstances under which Litvinenko was murdered with radioactive polonium-210, a highly unusual poison and one of many Hollywood-ready elements of the case that has made it a tabloid fixture for nearly a decade.

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The details of the case largely are more prosaic, when they're not confusing for a lay audience. The top-secret Scientist A1 was there to tell the inquiry that "one gram of polonium-210 emits one-six-six, zero-zero-zero, zero-zero-zero, zero-zero-zero, zero-zero-zero alpha particles per sec--"

"Pausing right there," an exasperated barrister interrupted, inadvertently triggering laughter in the courtroom and the press annex. "I may be wrong, but 166 quadrillion per second?"

A scientist talking to other scientists would have said 1.66 x 10¹⁴ emissions per second, but you have to dumb it down for lawyers.*  Emissions per second is actually a poor way to express radiation exposure.  Better ways involve rads, rems, or grays.

From the Daily Show, off-topic but very funny.

Murder Suspect Was On Probation: Fairfield, CA Police have arrested a habitual felon for a Thanksgiving day murder who was on probation at the time of the crime.  Henry Lee of the San Francisco Chronicle reports that 19-year-old Leonard Clayton has had multiple "law enforcement contacts" in the past for a variety of crimes including drug possession, burglary, carrying a loaded gun in public, and possession of stolen property, which would have carried time behind bars prior to the state's Realignment law, which reduced the penalties for these crimes.

Prosecutors To Seek Death Penalty For Accused Killer: Prosecutors in Pennsylvania have announced their plans to seek the death penalty for a man who police say brutally raped and murdered a sixth grade math teacher last month.  The Associated Press reports that 25-year-old Thomas Moore, along with a 16-year-old accomplice, is accused of torturing the woman and killing her after a botched burglary at her home.  Moore's co-defendant will most likely be charged as an adult for the crime, but will not face the death penalty.

CA Sued For Execution Delay:  A California judge has issued a tentative ruling requiring that the California Department of Corrections and Rehabilitation (CDCR) defend itself in a lawsuit claiming that it has intentionally delayed executions of condemned murderers for the past nine years.  Don Thompson of the Associated Press reports that the lawsuit, which was filed by CJLF, seeks to force the CDCR to adopt a single-drug execution protocol which is currently used in several other states.   In her tentative ruling, Sacramento Superior Court Judge Shellyanne Chang determined that CDCR is required by law to adopt an execution protocol, and that victims have the right to seek court action to force compliance.  The hearing was held this morning, and a decision is pending.

Michael Graczyk reports for AP:

A Texas man convicted of killing a 38-year-old woman nearly two decades ago while he was on parole for a triple slaying years earlier was executed Thursday evening.

Robert Ladd, 57, received a lethal injection after the U.S. Supreme Court rejected arguments he was mentally impaired and ineligible for the death penalty. The court also rejected an appeal in which Ladd's attorney challenged whether the pentobarbital Texas uses in executions is potent enough to not cause unconstitutional pain and suffering.

There are no dissents noted in the two Supreme Court orders.  Pentobarbital is the way to go.

The U.S. Supreme Court took up Toca v. Louisiana to decide the question of whether Miller v. Alabama -- which said a juvenile cannot be sentenced to life-without-parole unless the sentencer had discretion to select a lesser sentence -- applies retroactively to overturn judgments already final on the day it was decided.

Now the case will be dismissed as moot.  John Simerman reports for the New Orleans Advocate:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison.

Orleans Parish District Attorney Leon Cannizzaro's office agreed to vacate his murder conviction.

I think that is a proper disposition.  Toca's sentence would have been unduly harsh even if he were an adult at the time of the crime.  The deceased was his accomplice in the robbery.  In my view, the felony-murder rule should at least be reserved for the deaths of innocent people, and this death should not have been considered murder at all.

Texas set to Execute Convicted Killer: A Texas man sentenced to death for the murder of a mentally disabled woman is scheduled to be executed Thursday evening.  The Associated Press reports that 57-year-old Robert Ladd, who has been on death row for nearly two decades, beat the woman with a hammer before strangling her to death and setting her body on fire.  Ladd was on parole at the time of the killing for a triple-murder he committed in Dallas.  His attorneys claim that their client is mentally disabled and should be declared ineligible for the death penalty.  If the execution is carried out as planned, Ladd will be the second inmate executed in Texas this year. 

NY Settles Lawsuit With Machete-Wielding Thug: A New York City man who was shot by police officers after threatening them with an 18-inch machete will receive a $5,000 settlement from the city, even though the man's attorney agreed that the shooting was 'probably justified.'  Selim Algar and Natasha Velez of the New York Post report that in 2010, 24-year-old Ruhim Ullah was shot once in the leg by officers as he was attempting to attack them with the large weapon.  He eventually pled guilty to menacing a police officer and then proceeded to file a $3 million lawsuit against the city alleging police misconduct.  This is just one of the many lawsuits filed against the police department that has been settled under Mayor de Blasio.  

The prospects that federal law will be changed to legalize marijuana took a huge step back yesterday when AG nominee Loretta Lynch said that she does not support legalization.  The NPR report states:

During her first day of confirmation hearings for attorney general, nominee Loretta Lynch gave answers that seemed in line with President Obama. But then she was asked about marijuana, and whether she supports legalizing it.

"Senator, I do not," Lynch told Sen. Jeff Sessions, R-Ala., when he asked whether she supports making pot legal.

Bill linked yesterday to the live-blogging at Powerline on the nomination hearings for Loretta Lynch as Attorney General.  To watch video yourself, cruise on over to C-SPAN.  At the WSJ, Andrew Grossman and Devlin Barrett have this article on the "relatively tame" hearing.  Also at Powerline, John Hinderaker has this apoplectic post titled Loretta Lynch Must Not Be Confirmed, focusing on immigration.

A note to my fellow conservatives:  Get a grip and get real.

Elections have consequences.  We live in a country where a majority of the voters chose Barack Obama over Mitt Romney.  We may consider that choice profoundly stupid, but that's democracy -- the worst form of government except for all the others.

If Loretta Lynch is not Attorney General, who do you think will be?  Somebody better?  Get real.  We want the best AG we can get, and as long as Barack Obama is President, "best" means the best from among the subset of people he might choose.  Call that "least bad" if you like, but that's where we are.

The Constitution vests all executive authority in the President.  Everyone else in the branch works for him.  He is going to nominate people who agree with him on policy, and that's how it works from now until January 20, 2017.  Judicial nominations are different.  For executive officers, the Senate pretty much lets the President appoint who he wants, and it has been that way for both parties.

If Ms. Lynch is not confirmed, as Mr. Hinderaker demands, who will be Attorney General?  Eric Holder will stay on until the next nominee is confirmed.  The next nominee will not be any less aligned with the Obama/Holder policies than the present one.  So the chances of having someone better as AG would be slim in the long run and absolute zero in the short run.

The WSJ article says, "Several Republicans suggested that simply by not being Mr. Holder, Ms. Lynch's chances of confirmation were improved."

Roger that.

Richard Brawn of Petaluma, California has a Letter to the Editor in today's WSJ, with the above caption, that I will simply copy in its entirety:

Regarding the article "Texas Housing Case Tests Civil-Rights Doctrine" (page one, Jan. 21), the mischief maker in this case is the same one that perpetuates misery in public housing: Congress. I spent 13 years working in the Department of Housing and Urban Development. The two issues perpetually facing HUD were how to get the beneficiaries of public housing to accept personal and community responsibility, and how to convince the apologists and facilitators to stop putting their dogma ahead of getting the needy housed. While I was at HUD, a South African low-income-housing management firm presented to the San Francisco office how it had eliminated crime and misery in its buildings: Management strictly enforced rules and used video in the hallways and fingerprint security locks on building front doors, and required participation by the beneficiaries in maintaining the appearance of the building and surroundings. The firm reported that crime was virtually nonexistent and that residents viewed rules and security systems not as an invasion of human dignity but as critical to residents' well-being. In America, Congress has consistently prevented HUD from doing what it takes to get maximum housing for funds allocated and to get the misery makers out of public housing.

When discussing questions of right, the issues of waiver and forfeiture often come up.

A defendant facing jail time has a constitutional right to counsel, but, if he is mentally competent to do so, he also has right to waive that right and represent himself.  Justice Blackmun, in dissent, called that a constitutional right to make of fool of himself, but that's the law.  A defendant also has a right not to testify at his own trial, but he can waive that right and take the stand if he chooses.

A waiver is voluntary relinquishment of a known right.  A forfeiture is the loss of a right by failure to assert it or by wrongdoing of some sort.  A defendant has a right to confront witnesses and to exclude out-of-court testimonial statements, but he can forfeit the right by murdering the witness for the purpose of keeping his testimony out.

The right to counsel can be waived, we know, but can it be forfeited?  The Utah Supreme Court says it can:

This matter is before the court on a motion to withdraw filed by the appellant's appellate counsel. We grant the motion and conclude that the appellant has repeatedly engaged in extreme dilatory, disruptive, and threatening conduct that constitutes a forfeiture of his right to counsel for the limited remainder of the proceedings on appeal.

The case is State v. Allgier, No. 071904711, Jan. 23, 2015.

Note that this is on appeal, not trial.  The constitutional footing of the right to counsel on appeal has always been shakier than the trial right.

Jack Healy has this story in the NYT.

And now, for something completely different.

The U.S. Supreme Court gets stay-of-execution requests from death row inmates all the time.  Typically they have been denied without dissent or comment, since the obstinate Justices Brennan and Marshall retired.  Denials with a dissent noted happen occasionally, and every once in a while one is granted.  What I have never seen before, though, is a stay requested by the state.

January 14, Oklahoma executed Charles Warner, even though four Justices voted for a stay of execution, as noted in this post.  January 23, the Supreme Court took up for full briefing and argument the case of the remaining three inmates on that petition, challenging the state's use of midazolam as the first drug of the three-drug protocol, as noted in this post.

Rather than wait for a stay to be granted for the remaining inmates, Oklahoma Attorney General Scott Pruitt took the unusual step of asking for a stay himself, asking for it to be tailored to stay only executions with the controversial midazolam, not the conventional pentobarbital or thiopental, if the state can get any.  Today the Court issued that order.

Criminal, Free Under Realignment, Accused Of Killing Infant: The California man accused of murdering his 19-day-old child over the weekend is no stranger to law enforcement, and thanks to Realignment, had been in and out of jail for a variety of crimes throughout 2014.  Eric Leonard of FKI Radio reports that 30-year-old Matthew Warner was arrested at least three times last year and sentenced to 'flash incarcerations', a new program under AB-109 that holds parole violators in custody for a few days.   Warner is facing charges of murder, assault on a child causing death, sexual assault on a child, and torture.  If found guilty, he faces a sentence of life in prison without the possibility of parole.

TX Inmate Granted Reprieve Prior to Execution: A Texas man sentenced to death for murdering two teenage girls has been granted a reprieve, preventing his scheduled execution from taking place this evening.  Michael Graczyk of the Associated Press reports that the court hasn't explained why 51-year-old Garcia White, who has been linked to five murders in the Houston area between 1989-1995, was granted the reprieve and they have yet to say whether or not his appeal will be sent back to a lower court.  Another Texas death row inmate, 57-year-old Robert Ladd, is set to be executed tomorrow evening.

Habitual Rapist Accused In Cold Case Killing: A South Carolina man who authorities say is already serving a life sentence for a series of rape convictions is facing charges for a 15-year-old cold case murder.  WCIV News reports that Anthony Heyward is accused of beating a woman to death near her home in December 1999.  When police ran the DNA evidence immediately following the crime they were unable to find a match, but an updated DNA test conducted last year linked Heyward to the killing.  Heyward was accused in another murder in 2001, however, prosecutors abandoned the case because he was already serving a life term for his rape convictions.

My friend Paul Mirengoff at Powerline is live-blogging the confirmation hearing for Attorney General nominee Loretta Lynch.  He did the morning session here and the afternoon one here.

Lynch assure Flake that her commitment to securing the border is firm. We can all sleep better at night now.

Flake is pressing Lynch about failure to carry through on an effective border control program in Yuma, Arizona ("Operation Streamline"). Is she committed to the program? Lynch says she's committed to talking with Flake about his concerns.

Hey, that's cool.  The prospective AG isn't all that committed to enforcing the border, but is committed to talking about enforcing it. Is the law in good hands here?  This must be a takeoff on her boss's waffling on whether he'll use force to stop the Iranians from building the Big One, but is happy to talk about stopping the Iranians from building it.

Apparently, that's how the hearing is going.  Senators ask questions.  Ms. Lynch responds with friendly filibustering and mush. This gets accepted as "answers," and nobody becomes perturbed.

The New York Times invited my participation in its "Room for Debate," on the subject of executive clemency.  The immediate cause of the Times's interest in clemency might be the talented movie star and former teenage thug Mark Wahlberg, but there is a much larger move afoot here, signaled by the Administration's massive effort to enlist the defense bar and allied organizations in proposing literally thousands of clemency candidates  --  a thoroughly unprecedented approach to pardoning.

The Senate Judiciary Committee hearing announcement is here.

The State of Georgia tonight executed repeat murderer Warren Lee Hill, whose lawyers claimed he was intellectually disabled (formerly called mentally retarded) and therefore ineligible for capital punishment.

As the majority of the three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit noted, the evidence that Hill was not retarded was compelling.  He joined the Navy and was steadily promoted up the enlisted ranks to E-5.  "Hill was eligible for an E-6 promotion in the military; however, he was demoted not because of any mental inability, but because he murdered his girlfriend."

Although it is possible for a mildly retarded person to serve in the lower ranks, you don't rise that far if you are retarded by any reasonable definition of the term.  Atkins v. Virginia is based on a national consensus that we should not execute retarded people, and its application should be limited to people who fit the concept of retardation that produces that consensus.  If psychologists expand the label to apply to people who do not, that labeling should not be controlling.

Within prison he killed again, and that is the crime he was executed for.

The U.S. Supreme Court denied a stay 7-2.

CA DMV Overlooks False ID Crimes By Illegals: Illegal aliens living in California who seek a state-issued driver's license will have an easier time during the application process thanks to a policy that instructs DMV employees to ignore previous instances of identity theft.  Adelle Nazarian of Breitbart reports that a source at the California DMV disclosed that employees have been  instructed to look the other way if an applicant was previously caught using false information to obtain a driver's license.  Under state law, identity theft can be prosecuted as a felony, and may result in illegals being arrested and deported back to their native country.

AZ Murder Suspect Faced Deportation: The man police believe to be responsible for murdering an Arizona convenience store clerk last week was already facing deportation at the time of the killing and had been released from federal custody on bond.  Jim Walsh of The Republic reports that 29-year-old Apolinar Altamirano, who was out on bond for a burglary conviction, shot and killed the clerk during a dispute over a pack of cigarettes.  Altamirano, who admittedly has ties to the Mexican Mafia, was allowed to remain in the US on 'supervised probation' despite a burglary conviction and multiple accusations of harassment.

NY to Toughen Penalties for Sex Offenders: The New York State Senate has passed a number of bills aimed at toughening penalties and establishing stricter requirements for sex offenders.  Robert Harding of the Auburn Citizen reports that one of the bills would make it a crime for an individual to knowingly house or employ a sex offender who has yet to verify their residence, employment, or has failed to contact local law enforcement.  Another bill would make it illegal for level 3 sex offenders to live in student housing on college campuses.

The New York Times editorial board is nothing if not reliable  --  reliable, that is, in its sneering, down-the-nose, and most importantly mendacious view of those who disagree with it about capital punishment.  

It is time to dispense with the pretense of a pain-free death. The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable. When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

Wyoming Lawmakers Push For Firing Squad: Several Wyoming senators say the time has come for the state to bring back the firing squad as a method of execution as an alternative or backup to lethal injection.  Cheryl K. Chumley of the Washington Times reports that the firing squad suggestion comes at a time when several pharmaceutical companies have scaled back or completely eliminated the production of lethal injection drugs due to pressures from anti-death penalty groups.  Utah offers the option of using a firing squad for inmates who are already on the state's death row, but not for those who have just been sentenced to death.

GA To Execute Convicted Killer: A Georgia man convicted of murdering an inmate more than two decades ago is set to be executed Tuesday evening.  Kate Brumback of the Associated Press reports that 54-year-old Warren Lee Hill was already serving a life sentence for the murder of his girlfriend when he beat a fellow inmate to death in 1990.  If the execution is carried out as scheduled, Hill will become the second death row inmate executed by the state of Georgia so far this year.

Bill Increases Penalties For Crimes Against Children: A New Mexico lawmaker is gathering support for a bill that would increase penalties for people convicted of sex crimes against children and make it easier to prosecute them.  The Associated Press reports that the bill would increase prison time from 6 to 15 years for those convicted of coercing children between the ages of 13-18 to submit to sexual penetration.  The bill would also change the definition of the crime by excluding a requirement that the victim must have suffered a 'personal injury' such as pregnancy, chronic pain, or mental anguish. 

Kerana Todorov reports for the Napa Valley Register:

Investigators have recovered the bulk of the premium wine bottles stolen from The French Laundry on Christmas Day, according to the Napa County Sheriff's Office. No arrests have been made.

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The wine, with an estimated retail value of about $300,000, was reported missing Dec. 26 after an employee discovered someone had broken into the famed Yountville Michelin-starred restaurant. The suspect - or suspects - broke into the building sometime after 2 p.m. on Christmas Day, Pike said. The alarm system had not been set.

How big a truck do you need to steal 300 grand worth of wine?

Jill Leovy has this essay in the WSJ:

In predominantly African-American neighborhoods of U.S. cities, far too many killers have gotten away with far too many crimes for far too long, fueling a disastrous murder epidemic. Solving these murders and other serious crimes of violence in black communities should be a top goal for law enforcement--and it deserves to take priority over much more widely discussed issues such as racial profiling and the excessive use of force by police in black neighborhoods, from Ferguson to Staten Island.

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But instead of checking this wave of urban violence, America threw up its hands. Prison terms per unit of crime in the U.S. hit rock bottom in the 1960s and '70s, making the U.S. one of the world's most lenient countries, as William J. Stuntz of Harvard Law School and others have shown. Reformers focused on the rights of defendants, remaining blind to the ravages of under-enforcement.

In the 1980s, a get-tough backlash hit, ushering in the current era of mass incarceration and long sentences. But unsolved homicides still piled up in black neighborhoods. Even as convicts grew old in prison, detectives remained overwhelmed by exploding street violence.

As noted here and here last week, the U.S. Supreme Court declined, 5-4, to issue a stay of execution for Oklahoma murderer Charles Warner, who raped and murdered a baby. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Charles Warner is to be executed tonight. He and three other Oklahoma death row inmates filed a petition for certiorari and an application for stays of their executions, contending that Oklahoma's lethal injection protocol violates the Eighth Amendment. I believe that petitioners have made the showing necessary to obtain a stay, and dissent from the Court's refusal to grant one.

Although it takes five votes to grant a stay, it only takes four to take up a case for full briefing and argument, and the Supreme Court today granted certiorari in the underlying case.  The case is No. 14-7955.  It is now titled Glossip, et al. v. Gross, et al., because Warner's case has reached the point of ultimate mootness.

Mark Sherman has this story for AP; Adam Liptak and Erik Eckholm cover it for the NYT.

Update:  Robert Barnes and Mark Berman have this story in the WaPo.

Last week's execution of Warner, who was put to death for raping and killing an 11-month-old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, "My body is on fire."

"As the process began" is significantly misleading.  As I noted previously, the actual observation by the television reporter was:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."

Big difference.  Warner's statement is not evidence that the drugs being used are painful and cruel.  It is evidence that inmates facing execution are being coached to fake it, and some of them are going along with it.

I won't even try to characterize the depth of contempt for America and the extent of the guilt-mongering going on in this article from the Economic Policy Institute.  The title is, "Where Do We Go from Here:  Mass Incarceration and the Struggle for Civil Rights." So far as I can make out, its thesis is that no one, and in particular no African American, is responsible for his criminal behavior, and that it's only Jim Crow Amerika, now and forever, that causes people to be imprisoned:  Prison, you see, is merely the midwife of racist oppression.

Bill Would Increase Punishment for Violent Crime: A bill introduced by Indiana Senator Brandt Hershman would allow prosecutors to seek the death penalty in cases involving murders committed on college campuses.  The Purdue Exponent reports that Senator Hershman hopes that by adding school shootings to the list of crimes punishable by death, it will deter future tragedies from happening on Indiana school campuses.  The bill may be heard by the states Senate Committee as early as next week.

House To Vote On Border Security Bill: A bill to secure the U.S. border with Mexico will be voted on by the House early next week.  The Associated Press reports that the bill, which would increase the use of drones, surveillance systems, and other forms of security technology at the border, already passed the House Committee on Homeland Security Wednesday evening by a vote of 18-12.  The bill would also mandate that operational control areas, which are designed to prevent illegal border crossings, be placed at high-traffic border spots within two years and along the entire border within five years.  

Convicted Felon Targeted In Cold Case Killings: An Oregon man, currently serving time behind bars for attempted murder, will  be extradited to California to face murder charges after DNA evidence linked him to two cold case killings.  Veronica Rocha of the Los Angeles Times reports that 66-year-old Rodney Halbower is accused of raping and murdering two women in Northern California nearly 40 years ago.  If found guilty, Halbower faces a minimum sentence of life without the possibility of parole.

Federal Charges Unlikely in Ferguson Case: Lawyers with the U.S. Justice Department are expected to recommend that no civil rights charges be brought against Ferguson, MO police officer Darren Wilson.  Matt Apuzzo and Michael S. Schmidt of the New York Times report that an investigation conducted by the FBI found that there was no evidence to support civil rights charges against Wilson in the shooting death of Michael Brown in August 2014.  Attorney General Eric Holder and his civil rights chief will have the final say on whether or not the Justice Department will close the case against Wilson. 

NY Assembly Speaker Arrested On Corruption Charges: New York Assembly Speaker Sheldon Silver has been taken into custody and will face criminal charges after authorities say he pocketed millions in a corruption scheme.  The New York Daily News reports that Silver, who is facing five counts of corruption, allegedly accepted $4 million in bribes and kickbacks from a variety of firms seeking his political influence in Albany, New York.  Each count against Silver carries a maximum of 20 years behind bars.  

FL Supreme Court Upholds Death Sentence: Florida's highest court has upheld the death sentence for a man convicted of brutally murdering a woman he met on Craigslist in 2010.  Larry Hannan of The Florida Times-Union reports that 23-year-old David Sparre tortured the woman and stabbed her nearly 100 times, admitting to police that he took pleasure in it and killed her for "the rush."  During trial, Sparre instructed his attorney not to present any evidence on his behalf, an issue Sparre's appeals attorney claimed was a violation of his rights.

Reid Wilson reports for the WaPo:

Federal agents on Thursday arrested powerful New York Assembly Speaker Sheldon Silver (D) on federal corruption charges, stemming from payments he received from two New York City law firms.

Jennifer Queliz, a spokeswoman for the U.S. Attorney's office in the Southern District of New York, confirmed Silver was in custody Thursday morning. U.S. Attorney Preet Bharara will hold a press conference Thursday afternoon to announce the charges.

There is an interesting federalism question on the constitutional basis for federal prosecution of corrupt state officials.  It generally hinges on some tenuous connection with mail or interstate commerce.  In my view, a corrupt official denies the honest people of the state equal protection of the laws.  The bribe-payor gets special treatment that the honest people do not.  That is, of course, why he pays the bribe.  I haven't gotten any takers for my view yet.

Whatever the basis, prosecuting corrupt state officials is one of the most important functions of federal law enforcement.  Some valiant prosecutors do go after crooks who hold their purse strings, but we cannot expect that as a matter of course.

AK Considers Labeling Human Traffickers As Sex Offenders:  The Arkansas Legislature is considering a bill that would require criminals who engage in human trafficking or those who engage in sex with a human trafficking victim to register as sex offenders. Elicia Dover of KATV reports that the bill's author, Senator Jim Woods, believes that that the requirement would help law enforcement keep track of criminals convicted of these crimes.  

The Risks Cops Take:  Many who are demanding body cameras on police officers in the wake of the Michael Brown shooting may not like the idea so much when those cameras show the danger that officers face while trying to protect the public.  Case in point: Matt Pearce of The Los Angeles Times reports on the body camera video of a suspect shooting and killing a young Flagstaff, AZ police officer during routine questioning.  Like existing dashcams and DNA evidence, bodycams are going to help convict 99% of the suspects police officers confront, while reminding the rest of us how dangerous it is to be a cop.

I noted in my last post that President Obama erred in suggesting that crime and incarceration had both decreased for the first time in forty years.  The statistics are not yet in for 2014, and if the President was meaning to refer to 2013 (or any other year of his Presidency, for that matter), he was mistaken.

President Obama said in his State of the Union address:

Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.

For the last eight years, and until just a few days ago, Sen. Patrick Leahy of Vermont was Chairman of the Senate Judiciary Committee, an extremely powerful position.  In this piece from the Marshall Project, Sen. Leahy tells us what the President should say tonight about criminal justice reform:

The biggest issue facing our justice system today is our mass incarceration problem. The president has said before that we should enact laws that ensure "our crime policy is not only tough, but also smart."  But tonight, while he has the attention of every member of Congress and the American people, I want to hear the president say that he supports an end to all mandatory minimum sentences, as I do.  Mandatory minimums are costly, unfair, and do not make our country safer.  For too long they have served as an easy way to score cheap political points: Want to prove you're tough on crime? Just add another mandatory minimum to the law. No need to bother with evidence that they do not make us safer; they make a nice talking point. That policy fallacy is one of the reasons we have the largest prison population in the world. And why $7 billion - nearly a third of the Justice Department's budget - goes to the Bureau of Prisons instead of to community policing, victims services, or prison diversion programs that would make us safer and save taxpayers money.

One of the problems with allowing convicts to argue that their lawyers were ineffective, not just at trial but at every step of the review process, is that every time such a claim is raised we will hear an argument that a new lawyer must be appointed.  After all, we can't expect a lawyer to argue his own incompetence or dereliction of duty, can we?  But where does this end, if cases can be reopened without limit based on a claim the prior lawyer screwed it up?

Today in Christeson v. Roper, No. 14-6873, the Supreme Court holds summarily that the Federal District Court in Missouri should have appointed new lawyers to argue for relief after the first set blew the deadline.  The Court does not hold that relief should actually be granted.  Justices Alito and Thomas dissent from the Court's summary treatment, believing "plenary review would have been more appropriate in this case."

Under Coleman v. Thompson (1991), the tailspin of each lawyer asking for a new review by accusing the one before was dealt with by cutting off the right to effective assistance after the first appeal.  That protective mechanism is now going down the tubes, and we need a new one.

The 45-year-old proposal of Judge Henry Friendly is looking better and better.  Every defendant, no matter how clearly guilty, is entitled to a trial and an appeal, with a right of effective counsel for both.  After that, no more reviews unless he has a colorable claim of actual innocence.  I suppose at this point we would have to add ineligibility for the penalty.  In capital cases, one could also argue that the defendant is a minor, intellectually disabled, or a minor accomplice swept up in the felony murder rule, or that none of the circumstances that legally make a case capital are true.  That would be all.  In all other cases, i.e. most cases, we just wouldn't hear the claim.

If Judge Friendly's proposal is not politically palatable for the first habeas review, as he proposed it, surely we could at least apply it to all reviews after the first.  That would include an initial federal review following a state collateral proceeding.  In this case, the deadline missed was for federal review.  Christeson already had a full review of his claims in state court.

I've copied the facts of the case from that state supreme court opinion on direct appeal after the break.

Today the U.S. Supreme Court decided Holt v. Hobbs, No. 13-6827, regarding a prisoner's right to have a religiously mandated beard under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).  The Court decided unanimously that a 1/2 inch beard posed no threat to an institutional need that outweighed the prisoner's right to free exercise of religion.  The state had not articulated a good reason for not allowing it.

The result in this case doesn't bother me too much.  I am more concerned about the more extravagant applications of RLUIPA, such as the worshippers of Odin and their Annual Pork Feast.  No, I'm not making this up.

No Charges Filed In Shooting Of OK Police Chief: The Oklahoma man accused of shooting a police chief multiple times during an attempted arrest last week likely will not face any criminal charges.  CBS News reports that a man claiming to be Dallas Horton called 911 Thursday morning to report a bomb threat at a local elementary school.  When officers responded to his home, Horton fired several shots-hitting the police chief three times in the chest and once in the arm.  Horton claims that he didn't know that the police had entered his home and that he was unable to hear them identify themselves.

TX Set to Execute Triple-Murderer: A Texas man sentenced to death for a triple-murder more than two decades ago set to be executed by lethal injection Wednesday evening.  Michelle Casady of My San Antonio reports that 41-year-old Arnold Prieto was convicted of robbing and stabbing to death three elderly people in 1993.  Two of the victims happened to be his great uncle and great aunt.  Another man charged in the killings was 17-years-old at the time of the crime and was ordered to spend the rest of his life behind bars.

Supreme Court Sides With Bearded Muslim Inmate: In a unanimous ruling, the U.S. Supreme Court ruled in favor of allowing a Muslim prisoner incarcerated in Arkansas to grow a short beard for religious purposes.  The Associated Press reports that the court decided that Gregory Holt, who is serving a life sentence for brutally attacking his girlfriend, will be allowed to maintain a half-inch beard while incarcerated.  Prior to the ruling, Arkansas prison officials had prevented Holt from growing a beard citing security concerns.  

More dallying in death penalty review, and more potential for game-playing, are likely to be the results of today's per curiam Supreme Court opinion, as reported by the Heritage Foundation:

In ordinary civil litigation, if a plaintiff fails to file a complaint on time, the plaintiff cannot do so later; he loses. In habeas corpus cases, however, the filing period can be tolled for equitable reasons. In this case, the original lawyers for Christeson, a condemned state prisoner, did not file a habeas petition on his behalf before the filing time had elapsed. Different lawyers later sought to be substituted as counsel for Christeson so that they could argue that his earlier lawyers had abandoned him, a claim that Christeson's original lawyers could not advance without damaging their own professional interests. The district court refused to allow the new lawyers to become Christeson's counsel, however, and the Eighth Circuit dismissed the appeal for lack of jurisdiction, apparently reasoning that Christeson's new counsel were not authorized to file an appeal on his behalf. In a per curiam opinion for seven Justices, the Supreme Court reversed and held that only new lawyers could adequately raise the claim that there was a conflict of interest between Christeson and his original counsel, a claim that, if accepted, would excuse Christeson from not having filed his habeas petition on time. Alito filed a dissenting opinion, joined by Thomas, concluding that the Court ought not to have decided the case without full briefing and oral argument.  

The White Collar Crime Prof Blog has this entry, from the Ninth Circuit of all things:

The case is United States v. Dibe. Claudio Dibe pled guilty, without a plea agreement, to wire fraud and received a below Guidelines sentence. He complained on appeal that his sentence would have been lower if the sentencing court had considered his counsel's ineffective assistance in failing to adequately explain the benefits of the government's initial plea offer. The Ninth Circuit held that ineffective assistance of counsel cannot be considered as a mitigating under 18 U.S.C. Section 3553(a). Distinguishing the U.S. Supreme Court's opinion in Pepper v. United States, 131 S.Ct. 1229 (2011), the Ninth Circuit noted that counsel's alleged ineffective assistance "has nothing to do with [Dibe's] own conduct."

FL Governor Sets Execution Date: A Florida man convicted of murdering four people will be executed late next month after spending 30 years on death row.  Gal Tziperman Lotan of the Orlando Sentinel reports that 59-year-old Jerry Correll was found guilty in 1985 for the stabbing deaths of his ex-wife, five-year-old daughter, mother-in-law, and sister-in-law.  Correll exhausted all of his appeals in February 2014, he is scheduled to be executed February 26.

Law Allows Killers To Escape Prosecution: Police in New Mexico are urging reform on the state's 6 year statute of limitations for second degree murder, which one state legislator hopes to change later this year.  Emily Younger of KRQE News reports that under current New Mexico law, the 6 year limit has allowed admitted killers to get away with murder.  The issue has been brought to state legislators twice before, and both times, proposed legislation died in a Senate committee hearing.  New Mexico is the only state in the union that has a statute of limitation for second-degree murder.

OK Bill Targets Inmate Behavior: Oklahoma Senator Wayne Shaw has introduced legislation to improving inmate behavior in state correctional facilities and possibly reduce the prison population.  Barbara Hoberock of Tulsa World reports that the bill would allow inmates convicted of crimes requiring them to serve at least 85% of their sentence to start earning early release credits at the beginning of their sentence rather than the end.  Shaw believes this incentive will encourage better behavior from the start of a criminal's sentence.  Under current state law, offenders required to serve a minimum of 85% of their sentence include those convicted of murder, child pornography, human trafficking, and rape.

Adam Liptak has this article at the NYT.  He reports on research on sarcasm in Supreme Court opinions by Professor Richard Hasen at UC Irvine, who concludes that Justice Scalia is the most frequently sarcastic of the justices.

When I first read the blurb on this story in my NYT alert email, my first thought was that the research would qualify for the Well, Duh Award for Research Confirming the Obvious.  After reading the article and the description of Prof. Hasen's methodology, though, I conclude that the more appropriate citation is the Even A Stopped Clock Is Right Twice A Day Award for research with incredibly bad methodology that happens to hit the correct answer.

The U.S. Supreme Court has taken up a number of new cases for full briefing and argument.  All the buzz is about the same-sex marriage cases, off-topic for this blog.  There is one actual criminal case, McFadden v. United States, No. 14-378.  The question presented is:

Whether, to convict a defendant of distribution of a controlled substance analogue - a substance with a chemical structure that is "substantially similar" to a schedule I or II drug and has a "substantially similar" effect on the user (or is believed or represented by the defendant to have such a similar effect) - the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Kind of an interesting "mental state" question, but not a big case.

DNA Evidence Leads to Cold Case Arrest: Authorities in Texas have revealed that recently tested DNA evidence has resulted in the arrest of a suspect in a double-murder that occurred more than 30 years ago.  The Associated Press reports that the suspect, 57-year-old Edmond Degan, is accused of sexually assaulting and murdering two adult sisters in Houston in 1984.  Degan has a lengthy criminal past and has been convicted of a variety of felonies including aggravated robbery, assault, and making terrorist threats.    

NJ Bill Would Improve Megan's Law: A New Jersey assemblyman is sponsoring a bill to strengthen Megan's Law.  Kevin McArdle of New Jersey 1015 reports that the bill would add a sex offender's employment address and information about their school enrollment.  The bill also requires public notification whenever an offender can not be located or has violated registration requirements.  Additionally, information about all registered sex offenders would be available online.  Currently, only information about high and moderate-risk offenders is available to the public.   

Too Much Pot In Washington: Licensed marijuana growers in Washington state have too much pot and not enough buyers.  Dispensary owners are worried they may be put out of business.  Gene Johnson of the Associated Press reports that the majority of the state's marijuana users prefer buying untaxed pot sold from black market dealers or unregulated marijuana dispensaries.  The state estimates that less than 20% of the 31,000 pounds of marijuana harvested last year was sold in regulated pot shops, leaving dispensaries with too much marijuana and not enough revenue to keep the shops running.

Yesterday, Justice Sotomayor's dissent in the Oklahoma case credited the murderer's experts that the procedure risked extreme pain if the midazolam did not sufficiently anesthetize the inmate before the second and third drugs were administered.  Do the statements of baby-rapist-murderer Charles Warner -- "It feels like acid" and "My body is on fire" -- confirm her fears?

Nope.  One of the witnesses was Abby Broyles of Oklahoma City television station KFOR:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."

Before?  What's up with that? 

A year ago, an inmate about to be executed told guards that his lawyer urged him "to fake symptoms of suffocation" during his execution.  See this post. He reportedly told the lawyer no way.  Did Warner receive similar urging and go along with it, but get the timing wrong?  We will never know, but that seems to be the most likely explanation.

Broyles said it did not appear Warner was in pain. He never raised his head off the gurney and did not convulse the way Lockett did last April.

Sean Murphy with the Associated Press said afterwards, "It appeared the sedative worked."

Snopes confirms that a much discussed, scathing open letter by retired FBI Agent K. Dee McCown to Attorney General Holder is genuine.

The two executions noted in today's News Scan have been carried out.  In the Oklahoma case, the Supreme Court voted 5-4 to deny a stay on the murderer's claim regarding the use of midazolam as the first drug of the three-drug protocol.  Justice Sotomayor wrote a dissent.

The only reason any state uses midazolam is that pentobarbital, the drug veterinarians use every day for euthanasia, is unavailable.   It is made in the United States but its manufacturer, Akorn, places resale restrictions on its distributors.  Akorn does that because the agreement by which it acquired the rights to the drug from Lundbeck, a European company, requires it to.  Lundbeck was pressured into restricting sale by anti-death-penalty forces in Europe.

So here we are with a domestic policy choice that is ours to make and none of Europe's damn business being impacted by Europe, with the perverse result that there is some possibility that murderers may suffer more pain in execution as a result, if the concerns noted in Justice Sotomayor's opinion have any validity.

The solution is simple.  Congress can and should declare resale restrictions on pentobarbital void as restraints on trade and against public policy.

CA High Court Denies Killer's Appeal: The California Supreme Court has refused to hear the appeal of a man convicted of murdering a woman during a botched robbery attempt in 2009.  City News Service reports that attorneys for convicted killer Michael Bonfiglio appealed their client's life sentence based on the claim that there wasn't enough evidence to support the special circumstance allegation that the victim was killed during a robbery-which in California, results in an automatic life sentence.  Bonfiglio, along with two other men, shot the young woman to death in order to steal her laptop.  All three men were sentenced to life in prison without the possibility of parole. 

Prop 47 to Blame for Recent Crime Increase: Law enforcement officials in Fresno, CA believe that the recent increase in crime in their county is a direct response to last November's passage of Proposition 47, which reclassified several property and drug crimes from felonies to misdemeanors.  John Ellis of the Fresno Bee reports that prior to the passage of Prop 47, auto theft was down 26% in Fresno County, it has since increased by 7.8% in November and 9.8% in December, a trend that is worrisome to law enforcement officials.  Along with auto theft, rates of burglary and other property crime in Fresno County have also seen a recent increase.

FL, OK set to Execute Convicted Killers: Two condemned killers, one in Florida and the other in Oklahoma, are scheduled for  execution this evening after spending decades on death row.  Jon Herskovitz and Bill Cotterell of Reuters report that Florida inmate, 42-year-old Johnny Kormondy, was sentenced to death in 1993 for murdering a banker and sexually assaulting the man's wife during a home invasion.  Oklahoma's death row inmate, Charles Warner, will be executed for the rape and murder of a young child.

GA Executes Murderer: A Georgia man who was sentenced to death for the murder of a police officer in 1998 was executed for his crime Tuesday evening.  The Associated Press reports that 66-year-old Andrew Brannan shot and killed the sheriff's deputy after he was pulled over for speeding on a Georgia interstate, video of the incident shows Brannan engaging in a physical confrontation with the officer before shooting him nearly a dozen times.  Brannan's attorneys argued that their client suffers from mental illness due to his service in the military, but the state's high court upheld his conviction and denied a stay of execution.

MS Cops Questioning Length of Sentencing: The recent arrest of a shooting suspect, who happens to have a lengthy criminal history, has some law enforcement officers in Mississippi questioning if inmates are being released from prison too early.  Jonathan Brannan of WLOX News reports that a law that went into effect last July reduced the minimum time violent offenders spend behind bars to half of their sentence, and allows non-violent offenders to serve just a quarter of their sentences.  The law, adopted to make the state justice system more efficient and less expensive, has allowed the early release of dozens of serious criminals to commit more crime.  

TX Death Row Inmate Loses Appeal: A Texas man on death row for the murders of two police officers in 2007 has lost his most recent appeal to the U.S. Supreme Court, bringing him one step closer to execution.  Reagan Roy of KETK News reports that Randall Mays challenged his death sentence and impending execution based on the claim that he is mentally handicapped, making him ineligible for execution.  Mays is scheduled to be executed March 18, 2015.

Ed Lee at iSCOTUSnow has been predicting the outcome of U.S. Supreme Court cases based on the number of questions asked each side during oral argument.  "Studies have shown that the advocate who receives more questions during oral argument is more likely to lose."  It's a strong correlation as these things go, but correlation is not certainty.  Here is the October 15 prediction in Jennings v. Stephens:

My prediction is that the Court will side with the Respondent Stephens' position (i.e., that the Fifth Circuit correctly decided the case). This case is easier to predict [than a civil case argued the same day]. The Petitioner Jennings received 14 more questions than the Respondent Stephens, which is a fairly large differential in questioning that suggests a win for Stephens (the Director of the Texas Department of Criminal Justice, Correctional Institutions Division).

Nope.

Even so, the predictions are well worth watching, and the record is quite strong overall this term.

Today the U.S. Supreme Court decided Jennings v. Stephens, No. 13-7211, regarding the issues a habeas petitioner can raise on appeal when the district court accepts some of his claims but rejects others and the state appeals.

Congress long ago placed a limitation on appeals by habeas petitioners, recognizing that the vast majority of petitions are meritless.  In 1996, Congress bolstered the filter for appeals by adding a requirement that a certificate of appealability specify the issues will potential merit and limiting the appellate court's jurisdiction to the identified issues.

How does this requirement apply to a case where the petitioner actually wins on one of his issues, and the state is the party appealing the decision?  For the most part, it doesn't, the Court held 6-3.  The court applied the standard rule for appeals in other kinds of cases, that the party prevailing in the trial court can raise the issues rejected by that court as long as he does not seek different or greater relief than he obtained in that court.

I do not think this result is consistent with the purpose of the issue-specification requirement, although it is not contrary to any language in the statute.  I very much doubt that anyone in Congress even thought about this particular wrinkle as the legislation was moving through.  It will present a practical problem for the courts of appeals in cases where petitioners file hundreds of claims, most of them frivolous, as is increasingly common in capital cases.

This is a loss, but not a big one in overall scheme of things.

The real goal of CJLF's brief in this case was to get the Supreme Court to finally define what is a "claim" for the purpose of habeas corpus.  That question was squarely presented six terms ago in Bell v. Kelly (CJLF brief here), but the Court dumped the case.  The manner in which the Court resolved the appeal issue in Jennings made it unnecessary to decide that question today.  We will keep on keeping on.

I have not been shy about criticizing editorial stands in the New York Times, most recently its decision to label as "self-pitying" the NYPD's attitude of disgust with the dalliance between Mayor de Blasio and vitriolic enemies of the police, including but hardly limited to Al Sharpton.  The Times used the adjective "self-pitying" to describe the NYPD before the second murdered officer, Wenjian Liu, was even buried.  At that time and under those circumstances, I considered, and still consider, applying the label "self-pitying" to Liu's brothers on the force somewhere between callous and vile.

Cop Killer's Appeal Before NH Supreme Court: New Hampshire's highest court will hear argument in the case of a man sentenced to death for the 2006 murder of a officer Michael Briggs.  Lynne Tuohy of the Associated Press reports that for the first time, the state's Supreme Court will be examining whether or not the death sentence was fair compared to similar cases around the country.   Defendant Michael Addison is black and officer Briggs was white, a factor Addison believes contributed to his death sentence.   

MI To Collect DNA Samples Of Arrested Felons: Michigan Governor Rick Snyder has signed legislation that will allow police to collect a DNA sample at the time of arrest for all felonies.  WNDU News reports that the legislation will improve public by helping to identify repeat violent criminals earlier on in the investigation process.  DNA samples will only be sent in for testing where the individual is being arraigned, 28 other states have similar legislation that allows for DNA to be taken from felony suspects upon arrest.

Mexican Drug Cartels Flood U.S. With Heroin, Meth: According to recent drug seizure statistics, Mexican drug cartels are now smuggling increased amounts of heroin and methamphetamine across the U.S. border, a problem experts believe in large part is due to states which have decriminalized marijuana.  Nick Miroff of the Washington Post reports that with many states now selling legalized marijuana, the demand for lower quality marijuana smuggled into the US has fallen. In response drug cartels are switching to smuggling cheap heroin and meth.  The Drug Enforcement Agency estimates that 90% of the meth in the U.S. today was cooked in Mexico-where the chemicals to make it are far easier to obtain.   

A:  He didn't.  It wasn't an oversight.  His absence was a deliberated decision.  Byron York in the Washington Examiner explains why, and I'll get to that, but I want to say just a word first about how the White House has handled this.

The administration no-shows were not a failure of optics, or a diplomatic misstep, but were instead the logical result of the president's years-long effort to downgrade the threat of terrorism and move on to other things.

"The analogy we use around [the White House] sometimes, and I think is accurate, is if a JV team puts on Lakers uniforms, that doesn't make them Kobe Bryant," Obama told the New Yorker magazine in a January 2014 interview. The president was referring to the Islamic State of Iraq and Syria but was also suggesting in a broader sense that a number of post-9/11 offshoot terrorist organizations aren't worth the sort of war-footing mobilization that took place in the George W. Bush years.

******************************

Fast forward to January 2015. The attackers at Charlie Hebdo magazine and the Hyper Cacher kosher market in Paris would undoubtedly qualify as JV-level terrorists under Obama's new classification. But their work was enough to shock Europe and motivate more than a million people to gather behind dozens of heads of state at the unity rally Sunday. 

An amusing little notice from the Bureau of Justice Statistics in my mailbox today:

The Corrections Statistical Analysis Tool (CSAT) - Parole has been corrected on the BJS website

Today the U.S. Supreme Court decided Whitfield v. United States, No. 13-9026.  The question presented is how far a bank robber must move an unconsenting victim to qualify for an enhanced sentence.  The statute does not use the term kidnapping a hostage, but that's the idea.  The unanimous answer is not far at all.  The syllabus follows the break.

Lying beneath the case is the federalism question of whether bank robbery really needs to be a federal offense rather than a state offense.  A decent case could be made during the Great Depression that John Dillinger, Bonnie & Clyde, et al. were a threat to interstate commerce, but that case is hard to make today.  Those issues were not before the Court, though, and the case seems straightforward on the question actually presented.

The statute speaks of forcing a person to "accompany" the robber.  To support the proposition that "accompany" can mean a short distance, and could in the 30s when the statute was written, Justice Scalia cites a 1930 wedding announcement in the New York Times saying "accompany to the altar."  Nice touch.  Oh, and throw in Charles Dickens and Jane Austen for good measure.

This case only directly affects federal bank robbery prosecutions, but it may be useful for a "cf." cite in state kidnapping cases where the defense complains that the victim was not moved very far.

On its facts, if this case had been a state prosecution, it would make a good example of a valid application of the much-maligned felony-murder rule.  There are cases where a murder conviction for a felon without intent to kill is excessively harsh, but this would not be one of them.

Oklahoma To Resume Executions: The state of Oklahoma has announced its plans to carry out its first execution since last April's difficult execution of convicted killer Clayton Lockett.  Parker Perry of McAlester News-Capital reports that 47-year-old Charles Warner was originally scheduled to be executed the same evening as Lockett, but his execution was postponed after Lockett's execution was deemed problematic.  Warner, who was sentenced to death in 1997 for the rape and murder of an 11-month-old girl, is scheduled to be executed Thursday evening.

Legislature to Introduce Sex Crime Bills: Montana's House Judiciary is set to discuss two bills to better protect citizens from sex offenders.  KBZK News reports that one of the bills would create a sex offender prosecution unit at the state's Department of Justice. That unit would be allowed to prosecute crimes when local authorities lack the ability or funding to do so themselves.  The other bill, House bill 88, would require judges, rather than sex offenders, to choose who evaluates them.   It would also require  that registered sex offenders disclose their email addresses and social media screen names to authorities.

Terrorism is, to put it mildly, an aggravated form of murder, and thus a frequent topic on this blog.  

The day was emotional and peaceful, a gesture of unity just days after Islamic extremists slaughtered 17 people.World leaders joined French President Francois Hollande, including British Prime Minister David Cameron, German Chancellor Angela Merkel and Spanish Prime Minister Mariano Rajoy. The day also brought together an unlikely duo at the rally: Palestinian Authority President Mahmoud Abbas and Israeli Prime Minister Benjamin Netanyahu.

Spot any omissions?  Right you are.  No Obama.  No Biden.  No Kerry.  And let's face it: No interest.  That's what their boycott announces to the world.

The White House woke up this morning and expressed such regrets as it could squeak out, but I doubt a single person was convinced.  Particularly revealing was this tidbit in the Washington Post story on the Press Office's damage control:

The United States was represented by Ambassador to France Jane Hartley. Attorney General Eric H. Holder Jr. and Deputy Secretary of Homeland Security Alejandro Mayorkas were in Paris for weekend security meetings but did not attend the march.

No, they did not attend.  Must have been having a long lunch.  By the way, the American Ambassador, Ms. Hartley, is principally qualified for her post by having been an Obama bundler.

The mind-blowing portent of Obama's boycott will not be missed by our friends.  Or our enemies.

There are a couple of interesting marijuana stories in the papers.  Dan Frosch reports in the WSJ:

Before Colorado became the first state to allow marijuana for recreational purposes, supporters boasted that legalization would generate a sizable tax windfall, while opponents warned that it could have dramatic social consequences.

Slightly more than a year into the state's experiment with sanctioning pot sales to adults 21 and older, neither prediction is proving entirely true. Marijuana so far hasn't been the boon or bane that many expected, offering potential lessons to other states considering legalization.

Susan Shapiro had more personal and poignant article in the LA Times last week. 

I know the dark side. I'm ambivalent about legalizing marijuana because I was addicted for 27 years.

*                                           *                                     *

Back then Willie Nelson songs, Cheech and Chong routines and "Fast Times at Ridgemont High's" Jeff Spicoli made getting high seem kooky and harmless. My reality was closer to Walter White's self-destruction from meth on TV's "Breaking Bad" and the delusional nightmares in the film "Requiem for a Dream." Everyone believed you couldn't get addicted to pot.

There has been a good deal of speculation that the new Congress will be more hospitable to sentencing "reform"  --  i.e. lower sentences for federal felons  --  than the last one, in which the Justice Safety Valve Act (effectively abolishing mandatory minimum sentences) never even got a committee vote, and the Smarter Sentencing Act (slashing mandatory minimum drug sentences) passed out of the Senate Judiciary Committee but then sank out of sight.

I've noted more than once (for example, here, here and here) that there exists in some precincts of the literati and academia such an unhinged anti-American attitude that it's hard for normal people to grasp.  Every now and again the public gets a glimpse (as when some Harvard, Columbia and Georgetown law students loudly announced they felt too infuriated by America's awfulness in the Ferguson and Staten Island cases to take their scheduled exams), but generally it remains out of public view.

In her first book, The First Civil Right: How Liberals Built Prison in America, historian Naomi Murakawa demonstrates how the American prison state emerged not out of race-baiting states'-rights advocates nor tough-on-crime drug warriors but rather from federal legislation written by liberals working to guarantee racial equality under the law.  The prison industry, and its associated police forces, spy agencies and kangaroo courts, is perhaps the most horrific piece of a fundamentally racist and unequal American civil society.  More people are under correctional supervision in the United States than were in the Gulag archipelago at the height of the Great Terror; there are more black men in prison, jail or parole than were enslaved in 1850. How did this happen?

And that is where I get off the ship.  America, the "prison state" (when 0.7% of the population is incarcerated, virtually all because of their own greedy or violent choices; 99.3% of the population is not).  "Race-baiting" conservatives (when essentially all of the race-baiting and its allied race-based bullying is done by Mr. Osterweil's buddies).  "Spy agencies and kangaroo courts" (when spying has next to nothing to do with criminal convictions, and the courts provide process to the point that it's overtaken substance).  "The most horrific piece of a fundamentally racist...society" (It's not just that Amerika stinks, it's that it's horrific).

Ohio to Change Execution Protocol: Officials in Ohio have announced their plan to drop its current two-drug execution method and switch to a different protocol, requiring a delay to an upcoming execution.  Andrew Welsh-Huggins of the Associated Press reports that Ohio will now use thiopental sodium for future executions-a move that death penalty opponents immediately questioned because foreign manufacturers refuse to sell it to U.S buyers.  Ohio was set to execute convicted child killer Ronald Phillips early next month.  

Repeat Offender Arrested on Drug, Weapons Charges: A California man with a lengthy criminal history is behind bars once again after authorities say he illegally sold drugs, weapons, and stolen cars.  Corin Hoggard of ABC 30 reports that 46-year-old William McPhederain a documented member of the Aryan Brotherhood, has been in and out of police custody since the age of 16 on a variety of felony charges.  McPhederain is no stranger to police, just a few months ago, he was held in county jail for just one day after being arrested on nine felony weapon and drug charges- a common occurrence in over-crowded county jails across the state due to Realignment.

PA Grand Jury Recommends Charging Attorney General: A Pennsylvania grand jury has recommended that criminal charges be filed against Attorney General Kathleen Kane amid allegations that she leaked secret information to newspapers in an attempt to embarrass political rivals.  The Philadelphia Inquirer reports that Kane allegedly leaked grand jury information anonymously. If the allegations are proven to be true, Kane could face charges for contempt of court and up to six months behind bars.  The District Attorney from Montgomery County will review all of the evidence and make a decision on whether or not to prosecute the Attorney General.    

Only those living on Mars don't know that Colorado has legalized recreational use of pot.  The ballot measure that brought this about was sold to the electorate with several assurances  --  that use in public would remain prohibited, as would use by minors, and that tax revenue would cascade into the state.  The strong libertarian component backing the measure told us that it had little to no interest in affirmatively promoting pot use, but was instead interested simply taking a step toward states' rights and individual freedom to decide for oneself whether the risks were worth the "benefits."

Tens of thousands of revelers raised joints, pipes and vaporizer devices to the sky Sunday at a central Denver park in a defiant toast to the April 20 pot holiday, a once-underground celebration that stepped into the mainstream in the first state in the nation to legalize recreational marijuana.

The 4:20 p.m. smoke-out in the shadow of the Colorado capitol was the capstone of an Easter weekend dedicated to cannabis in states across the country. Although it is still against the law to publicly smoke marijuana in Colorado, police reported only 130 citations or arrests over the course of the two-day event, 92 for marijuana consumption.

Repeat Felon Accused of Murder: Police in Northern California say the man accused of carjacking a woman and shooting her dead earlier this week is 41-year-old convicted felon Anderson Swift.  Peter Hecht and Marissa Lang of the Sacarmento Bee report that Swift approached two women as they left a restaurant Tuesday evening and demanded they hand over their car keys, the women attempted to flee and run back to the restaurant, but Swift fired off several rounds leaving one of them dead.  Swift is currently being held in county jail on charges of murder, carjacking, and being a felon in possession of a handgun.   

Cop Killer Granted Stay of Execution: A Pennsylvania man convicted of killing a police officer nearly two decades ago has been granted a stay of execution just hours before he was scheduled to be put to death.  Kelly Bayliss of NBC Philadelphia reports that 45-year-old Christopher Roney was sentenced to death in 1996 after authorities say he shot and killed a police officer during a botched bank robbery attempt.  Two of Roney's co-defendants confessed to the crime and identified Roney as the shooter.  This is the second time he has been granted a stay.

Habitual Sex Offender Accused of Rape: A New York man with a lengthy criminal past and prior convictions for rape is behind bars once again after authorities say he raped and impregnated an 11-year-old girl.  Lisa Fogarty of Opposing Views reports that 52-year-old Jacky Berry, who has been a registered sex offender since 1990, allegedly had sexual contact with the young girl on several occasions over the course of four years.  A DNA test was performed on the victim's baby after it was born and police confirmed Berry was the father.  Berry is in county jail facing charges of felony predatory sexual assault against a child.  If convicted, he faces a life sentence in prison.

With all the grim stuff we have to talk about here, I am pleased to announce some very good news.  California Senator Barbara Boxer will not be running for reelection in 2016.  With an open seat instead of challenging an incumbent, the race will be more competitive.  If next year sees a Republican winning the White House, as the usual cycle indicates, maybe some coattails can help flip this seat.

Kevin Freking has this story for AP.  It's mostly the usual fluff you would expect, but there is this:

Boxer had a way of riling conservatives. She can be abrupt with those who question or disagree with her, and some of the exchanges she has had with witnesses at committee hearings over the years cemented her reputation as a firebrand.

In 2009, she brusquely requested that a brigadier general in the Army Corps of Engineers call her senator instead of ma'am. The confrontation served as fundraising fodder for her election opponents the following year, but she still won handily.

"Firebrand" is not the word I would use, but our standards preclude use of the most accurate term.

There are many people whom I disagree with on the issues, sometimes strongly, but whom I can respect as people and have a reasonable dialogue with.  Barbara Boxer is not one of them.  Her mean-spiritedness, arrogance, and close-mindedness place her in a different category.  Two years is still a long time to put up with her in the Senate, but at least we can see the light at the end of the tunnel.

Today's WSJ has an editorial titled, "Islamist Terror in Paris:  Jihadists target Western principles of free speech and religious pluralism."  It describes yesterday's slaughter, then notes:

Wednesday's massacre, following a long string of plots foiled by police in the U.K., France and elsewhere, is a reminder that jihadism isn't a distant Middle Eastern phenomenon. There will be many more such attempts at mass murder, and authorities in the U.S. and Europe need broad authority to surveil and interrogate potential plotters to stop them.

This offends some liberals and libertarians, but imagine the restrictions on liberty that would follow if radical Muslims succeed in blowing up a soccer stadium or half a city. Men willing to execute cartoonists in Paris and 132 children at point-blank range in Peshawar in the name of religion won't shrink from using more destructive means to impose mass casualties. Better to collect metadata and surveil some people now than deal with public demand for mass Muslim arrests or expulsions after a catastrophe.

Wednesday's attack also demonstrates again that violent Islam isn't a reaction to poverty or Western policies in the Middle East. It is an ideological challenge to Western civilization and principles, including a free press and religious pluralism. The murder of Charlie Hebdo cartoonists is merely the latest evil expression of a modern arc of Islamist violence against Western free speech that stretches back to Ayatollah Khomeini 's 1989 fatwa calling for the killing of novelist Salman Rushdie. 

The title of this post is the latest article from the always wise Theodore Dalrymple in the City Journal regarding the media's predictable reaction to yesterday's massacre in France.  As the doctor puts it:

How long would it take for a Western journalist to blame the Charlie Hebdo murders on French colonialism and journalistic insensitivity to the feelings of Muslims? Not nearly as long, I suspected, as it would take a journalist in the Muslim world to blame them on the legacy of Mohammed and Islam.

And I was right. It took less than four hours for an associate editor of the Financial Times, Tony Barber, to post a piece on the website of his august publication blaming the journalists and cartoonists of the satirical French magazine (and the two policemen as well?) for their own deaths. Here is what he originally wrote and posted, though he later edited out the final clause:

[Charlie Hebdo] has a long record of mocking, baiting and needling French Muslims . . . [This] is merely to say that some common sense would be useful at publications such as Charlie Hebdo . . . which purport to strike a blow for freedom when they provoke Muslims, but are actually just being stupid.

According to this perverted logic, if the relatives of the 12 murdered men were now to storm into the offices of the Financial Times and shoot 12 staff members because of the considerable provocation offered by Tony Barber, it will prove only that Barber had just been stupid.

One wonders whether Mr. Barber is also a zealous advocate for the general defense of provocation in its traditional sense of reducing the crime of men who find their wives in bed with a paramour. 

That aside, there seems to be an epidemic of hand-wringing taking place rooted in the innate desire to understand what compels people to commit such horrific acts of violence.  Such a desire is, what modernity calls, natural and perhaps inexplicable: We know that reasonable people do not wish to commit such atrocious crimes.  But that, of course, assumes that the radical terrorist mind is reasonable.   

One of the suspects in the Jihadist massacre today in Paris is 34 year-old Cherif Kouachi.  An ABC News report notes this about him:

Kouachi, along with six others, was sentenced in May 2008 to 3 years in prison for terrorism in Paris. All seven men were accused of sending about a dozen young Frenchmen to join Abu Musab al-Zarqawi, the leader of Al Qaeda in Iraq, after funneling them through radical religious establishments in Syria and Egypt.

Teen Accused of Murder While on 'Day Pass' from Juvenile Hall: Police in Stockton, CA report that a teen accused of murdering a man Sunday afternoon was on a weekend pass from juvenile hall.  News 10 Sacramento reports that the juvenile detention center allows inmates to go home for the weekend in order to work on homework and build relationships with their family. They are prohibited from hanging out with friends and are required to be accompanied by their parent or guardian at all times.  The teen, along with another juvenile accomplice, now face charges of felony robbery and murder.

Murderer Sentenced to Life Without Parole: A Michigan man convicted of raping and murdering his girlfriend's five-year-old niece has been sentenced to life in prison without the possibility of parole (LWOP).  The Associated Press reports that 23-year-old Darnell Cheatham kidnapped the young girl from her home in July 2011 and raped her before strangling her and setting her body on fire in a vacant house.  LWOP is the most severe sentence available under Michigan law.  

Parolee Tied to Recent NYPD Shooting: A habitual criminal in New York, on parole for robbery, has been linked to Monday night's shooting of two NYPD officers.  The New York Daily News reports that 28-year-old Joseph Kemp and 24-year-old Jason Polanco were allegedly involved in an armed robbery of a grocery store Monday evening.  When officers arrived, Polanco fired off several rounds, wounding his accomplice and two police officers.  Both men have had several encounters with police in the past, and have been convicted of a variety of charges including robbery, weapons possession, and disorderly conduct.

Violent Crime Up In Los Angeles:  For the first time in 12 years the rate of violent crime has increased in Los Angeles, in some cases dramatically.   Joel Rubin and Ben Poston of The Los Angeles Times report that in 2014 he city suffered a 12% increase in violent crime compared to 2013, with aggravated assaults, typically attacks with a weapon resulting in serious injury, up over 24%.  These higher numbers follow an investigation last summer which found that the city had missclassified nearly 1,200 serious and violent crimes as low level offenses.  Does Realignment have anything to do with this? 

The "Hands up, don't shoot" narrative that fueled the rioting in Ferguson and elsewhere, and the murders of two policemen in New York City, was fake.  Forensic evidence and reliable eyewitness testimony showed that Michael Brown's hands were not up, and he was not attempting to surrender, when he was shot.

Here's a red-hot news flash.  Sirhan Sirhan is guilty of the murder of Senator and presidential candidate Robert F. Kennedy.

In 1996, Congress clamped a one-year statute of limitations on petitions for writs of habeas corpus when used as collateral attacks on criminal judgments.  In 2013, the Supreme Court held in McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 that actual innocence is, in effect, an exception.  (I have no quarrel with that holding as a matter of policy and did not file a brief in that case to oppose making the exception, but as a matter of statutory interpretation I don't think the opinion holds water.)  But look who crawls out of the woodwork claiming innocence.  Later in 2013, the federal magistrate judge issued a report and recommendation rejecting Sirhan's claim.  It begins,

This case may be the final chapter in an American tragedy. On June 5, 1968, moments after declaring victory in the California Democratic primary, Senator Robert F. Kennedy walked through the kitchen pantry of the Ambassador Hotel, where petitioner was waiting.  As Senator Kennedy stopped to shake hands with hotel employees, petitioner walked toward him, extending his arm. Instead of shaking Senator Kennedy's hand, petitioner shot him. Petitioner continued to fire his gun even as bystanders wrestled him onto a table. Senator Kennedy died of his wounds.

Al Sharpton has come up a number of times in discussions on this blog lately.  Dennis Saffran has this article in City Journal to remind us who Al Sharpton really is.  One thing he is not is a minister.

Parolee Charged With Murder: A Pennsylvania man recently released on parole has been charged with murder.  Brett Hambright of the Lancaster Online reports that 20-year-old Stefon Landing was paroled three weeks prior to his most recent arrest after reaching a plea deal that gave him credit for time served (roughly five months in jail) and 18 months on parole for a felony robbery and illegal gun possession.  Police believe Landing shot and killed another man Sunday afternoon after a drug deal went bad.

Execution Date for Cop Killer:  Georgia Attorney General Sam Olens has announced that the state is set to execute Andrew Howard, a man convicted of murdering a police officer in 1998.  The Valdosta Today reports that Howard shot and killed Deputy Sheriff Kyle Dinkheller, 22, in 1998, during a routine traffic stop.  Howard said that the officer wasn't showing him a 'sufficient amount of respect.'  Howard's execution will take place at 7:00 pm on January 13.   

Paroled Kidnapper Accused in Recent Abduction: An Oklahoma man who served time in prison for a kidnapping conviction a few years ago, is behind bars again after police arrested him for abducting a 4-year-old boy.  Dave Detling of KOCO News reports that 56-year-old Gregory White allegedly kidnapped the young boy from his home and kept the child for 6 hours before dropping him off at a local convenience store.  White was convicted of kidnapping and beating his ex-girlfriend in 2008 and sentenced to 12 years in prison. It is unclear when he was released from prison.

Bill Seeks New Restrictions On DUI Offenders: Oklahoma Senator Patrick Anderson is proposing a bill aimed at preventing DUI offenders from buying or consuming alcohol for a set period of time.  Fox News reports that the bill is designed to deter drunk drivers by preventing them from buying alcohol and also punishes others who buy alcohol for them.  Those who oppose the bill question the ability of police to enforce the restrictions, citing too many flaws for it to be successful.

Record Number of Meth Seizures in 2014: Border Patrol agents on the U.S.-Mexico border report that meth seizures soared to record breaking numbers in 2014.  The Associated Press reports that the San Diego, CA field office confiscated 63% of all methamphetamine seized at land, air, and sea entry points nationwide in 2014.  The DEA estimates that 90% of all meth in the U.S. comes from Mexico.

No Change of Venue in Marathon Bombing Trial:  Eugene Volokh at the Volokh Conspiracy notes the denial of change of venue by the district judge and the denial of a writ of mandate by the First Circuit Court of Appeals.

Rhonda Cook reports in the Atlanta Journal-Constitution:

The Georgia Department of Corrections on Friday set a Jan. 13 execution date for Andrew Howard Brannan, who murdered a 22-year-old Laurens County deputy during a 1998 traffic stop.

If Brannan is put to death by lethal injection, he will be second man Georgia has executed in little more than a month; Robert Holsey was executed on Dec. 9 for murdering a Baldwin County deputy.

In January 1998, Laurens County deputy Kyle Dinkheller stopped Brannan on Interstate 16 for speeding, driving at 98 mph.

All that happened after Brannan was pulled over was captured by a video camera on the deputy's car.

Michael Howard Saul reports in the WSJ:

Hundreds of police officers again turned their backs as Mayor Bill de Blasio spoke Sunday at a funeral for a slain officer, demonstrating the challenge the mayor faces in healing a rift with the nation's largest police force.

*                                *                              *

The officers' action reflected growing anger with a mayor who said he has counseled his biracial son to be careful during encounters with police, has allied himself with a police critic, the Rev. Al Sharpton, and has backed protesters rallying against grand-jury decisions not to indict officers in the 2014 deaths of Eric Garner in New York and Michael Brown in Missouri.

"Police officers feel like they were turned upon by City Hall, and we have a right to express our opinion as well, as they did respectfully," said Patrick Lynch, president of the Patrolmen's Benevolent Association, the city's largest police union.

He said the back-turning was "an organic gesture that started on the streets of New York."

Commissioner Bratton asked but did not order the police officers to refrain this time, and an overwhelming majority ignored the request, as a picture in the article shows.

Kate Mather and Richard Winton report in the LA Times:

Federal prosecutors will seek the death penalty against the man charged in the deadly 2013 shooting at Los Angeles International Airport, according to court documents filed Friday.

Paul Anthony Ciancia, 24, was charged with 11 federal counts in connection with the Nov. 1, 2013, attack that killed one Transportation Security Administration officer and wounded three other people. Authorities allege Ciancia walked into the airport's busy Terminal 3 and opened fire with a semiautomatic rifle.

The decision is obviously correct, and this is one of the few homicides that really should be prosecuted as a federal offense.  The homicide victim was a federal officer targeted specifically because of his federal duties, as are two of the wounded victims.

The current Administration has been reasonable in seeking the death penalty in federal cases where it is warranted, but it is derelict in carrying it out. 

To read the NYT, Eric Holder's latest musings, or practically any libertarian blog (Radley Balko's coming first to mind, although most anything in Reason magazine will do), one would think that there is no "war on the police," but only concerned citizens mindful of America's stained, racist past and yearning for less thuggish law enforcement and fairer treatment for minorities, particularly young black men.

This sort of sadistic child murder has become commonplace in a country that devalues parenting and honors self-indulgence  --  the latter being exactly what parenting does not allow.

Shamekia Chambers said Friday that she launched the online effort to help her cousin Shawn Beckford, father of 14-month-old Cameron Beckford [the toddler who was killed]....His mother, Dainesha Stevens, has been charged with endangering children and tampering with evidence. Her attorney says Stevens made up a story about leaving Cameron on a doorstep because she couldn't care for him and that was her way of asking for help.

Father, Son Lead Police On Crime Spree: A traffic stop in West Virginia resulted in a shootout with police and two suspects in custody charged with murder after officers found the bodies of two in the bed of their truck.  Jonathan Mattise and Mitch Weiss of the Associated Press report that a father and son duo from Texas allegedly shot and killed an elderly couple in North Carolina before setting their home on fire and stealing their vehicle.  When police pulled the men over for a traffic stop in West Virginia, they began shooting at officers.  Police are still uncertain about the motive for the killings, but believe the pair would have continued on with their crime spree if they hadn't been caught.

Murder Rate Drops In Several US Cities: Major cities across the U.S. experienced lower murder and violent crime rates in 2014, and while no one is certain on the exact cause, law enforcement officers are celebrating the trend.   Reid Wilson of the Washington Post reports that violent crime rates have been declining since 2006, something experts credit to longer prison sentences and improved community policing strategies.  Not every major city was able to celebrate a decrease in violent crime. Los Angeles, Indianapolis, and Miami all saw rates increase. 

Jury Recommends Death For Killer: A California jury has recommended that the man convicted of murdering a mother and her three daughters in 2008 should be put to death for his crimes.  The Associated Press reports that 24-year-old Corey King stabbed the woman and her daughters dozens of times before setting their home on fire.  Prosecutors never determined the motive, but believe the young girls were killed because they witnessed the killing of their mother.  King is scheduled to be formally sentenced on February 20. 

 

"Be the first kid on your block ... "  Long ago that sales pitch was used to sell things to children.  Today, there are still lots of people who take enormous pleasure in being among the first to have the hottest new thing.  They are called early adopters in the tech business, and those of us who aren't early adopters benefit from their willingness to pay high prices for still buggy software and for gadgets that may or may not endure.  Remember the Betamax?  Personally, I am content to let others be the lab rats research participants and wait for version X.1.

The federal courts are not early adopters, Chief Justice Roberts explains in his 2014 Year-End Report on the Judiciary, and the U.S. Supreme Court particularly is not.  Filing documents over the internet is an important advance, but development of the system has been slow in the federal district courts and courts of appeals, and the Supreme Court still doesn't have it.  Today we email PDFs of briefs on the due date, but the printed brief must still be in the mail on that day, and that is the official filing.

SCOTUS will finally come around in 2016, but the Chief wants to make sure the system is equally available to all.  Unlike the CM/ECF system for the lower federal courts, access will be free to the public.

The report begins with an amusing bit of infotech history -- pneumatic tubes carrying documents around the building.  The report is well done, not long, and worth reading.

Christin Ayers reports for KPIX, San Francisco:

A Vallejo homeowner fed up with package thefts from his front porch left a stinky surprise boxed up for the thief with a little help from his dog.

Opponents of the death penalty know very well that they are on their least defensible ground when the focus is on a real capital case.  When the people know what one of the very worst murderers has done and they see and hear the families of victims calling for justice, the case for execution as the only adequate consequence is so clear to most people that the opponents have little to stand on.

When capital punishment repeal bills are being pushed through legislatures, the last thing the repealers want is for the vote to be characterized as one to overturn the well-deserved sentences of the vicious killers presently on death row.  It is just as wrong, of course, to preclude justice for the as-yet-unknown atrocities to be committed in the future, but in terms of politics and public perception, it is far more difficult for them to block it in a known case with human faces.

So the repealers routinely include nonretroactivity provisions in the repeal bills, promising that the existing sentences will not be affected.  They did that in New Mexico, Connecticut, and Maryland.  But the promise is hollow.

To the surprise of no one, outgoing Maryland Governor Martin O'Malley has commuted the sentences of the remaining murderers on that state's death row, Brian Witte and Ben Nuckols report for AP.