March 2015 Archives

Spring Break Shooting Prompts Debate About Restrictions:  A spring break house party on the Florida Panhandle that erupted with gunfire and left seven people injured has prompted officials to consider cracking down on the out of control spring break season.  "This is what we've been trying to warn people about," said Bay County Sheriff Frank McKeithen. Until the shooting, the Sheriff's warnings had been ignored by most local officials.  Melissa Nelson-Gabriel and Matt Sedensky of the AP report that Panama City Beach's city council has allocated up to $200,000 to contribute to increased police patrols, discussed the implementation of an alcohol ban on beaches, as well as making the last-call on alcohol sales earlier.  The shooter, David Jamichael Daniels, was arrested and charged with seven counts of attempted murder.

Bill to Grant New Orleans DA Investigators Arrest Powers:  The city of New Orleans continues to surge with violent crime, leading a local state lawmaker to propose new legislation that would grant the Orleans Parish District Attorney's office more law enforcement authority, allowing the NOPD to focus on fighting crime.  Sabrina Wilson of Fox 8 WVUE reports that HB 179, created by Rep. Austin Badon, would give DA investigators arrest powers, which is the only element of authority that they currently don't share with police officers.  The district attorney supports the idea.

Bill Criminalizes Disclosure of Police and Military Personnel's Residences:  Pennsylvania state senator Lisa Boscola has proposed legislation that would make it a crime to disclose the home addresses of police officers and military personnel.  Jim Deegan of Lehigh Valley Live reports that disclosure would be classified as a third-degree misdemeanor and would apply to social media.  Given the dangerous and sensitive nature of both law enforcement and military duties, Boscola believes, once the bill is passed, it will protect them and their familes from harassment and potential violence.

COPPS Unit Successfully Targets Property Crime:  The implementation of a specialized unit last year in Columbus, Indiana called Community Oriented Policing and Problem Solving, or COPPS, allows police to focus on problem areas in the city.  Teresa Mackin of Wish TV reports that the unit doesn't take patrol calls during their shifts, which allows for more in-depth investigations and the opportunity to act proactively in an effort to target repeat offenders.  Chief of Police Jonathan Rohde says property crime has decreased in areas the unit has worked.

Immigrant Gang Arrests Decline Under Obama's Policies:  Arrests of immigrant gang members has been in rapid decline since 2013, raising concern about whether the Obama Administration regards international gang activity as a priority.  Caroline May of Breitbart reports that gang activity and the number of immigrant gang members has not declined.  South Texas Border Patrol agents' say that an increasing number of MS-13 gang members have been crossing the border since 2011.  Jessica Vaughn, an expert for the Center for Immigration Studies, emphasizes the need for greater immigration enforcement, but points out that the Obama Administration's policies, such as the Deferred Action for Childhood Arrivals, "have shielded too many gang members from deportation."

There's a lot of background noise going on about capital punishment.  The press plays up stories of alleged "exoneration," Jim Crow, drunk defense lawyers, cheating prosecutors, phony evidence, lethal injection supplies, and a great deal more.

There is a regular pattern in constitutional law.  The U.S. Supreme Court announces that the Constitution has magically sprouted a new rule, trumping the power of the people to enact laws through the democratic process in a way that it never did before.  Many people, perhaps most, agree with the rule in its simple form.  Ah, but life is not simple.  With every rule comes pesky little details about its boundaries in the gray zone and the means by which disputes on its application are resolved.  Since no one but the U.S. Supreme Court can authoritatively decide for the whole country what a federal constitution rule actually means, the high court is stuck with the details.

Should people with intellectual disability, formerly called mental retardation, be categorically exempt from capital punishment, regardless of how many or horrible their crimes?  I will assume for the sake of argument that the consensus of the American people would be "yes" for the moderately retarded and below.  I very much doubt that such a consensus would exist for the mildly retarded if people knew what that meant.  If fully informed, I think most people would agree with the 1989 rule of Penry v. Lynaugh that intellectual disability in that range should be considered as a mitigating factor to be weighed in the balance, not a trump card.

Even so, in Atkins v. Virginia in 2002, the Supreme Court extended the blanket prohibition to everyone diagnosable as retarded, but not to "borderline intellectual functioning," the next step up.  The fuzzy distinction between mildly retarded and borderline had been of little consequence while both were mitigating and neither was a trump card, but suddenly the distinction made a great difference.  A wave of death row inmates claiming to be retarded, a few of whom actually were, made Atkins claims.  How do we go about deciding them?  Does every one who makes the claim get a full-blown hearing?

Should a judge who receives an Atkins claim look to the record of a pre-Atkins sentencing and decide on the basis of that record alone, without giving the inmate an opportunity to submit any additional evidence, that he has no claim?  Of course not.  If you read only the question presented as phrased by lawyers for the inmate in Brumfield v. Cain, No. 13-1433, you might think that is what happened in that case.  Not really.

We continue to make small gains in the ability of victims of crime to have their voices heard in cases affecting the criminal justice system.  On March 12, I noted that the California Court of Appeal had rejected the attempt of the California Department of Corrections to throw out the suit of two victims' families to force it to adopt a lethal injection protocol.

Meanwhile, back in federal court, the fight continues over the attempt to squelch the federal "fast track" on capital habeas cases, the never-implemented major reform of the Antiterrorism and Effective Death Penalty Act of 1996.  Since USDoJ is not interested in fighting this as vigorously or expeditiously as is needed, I moved to intervene on behalf of Marc Klaas, the father of a murdered little girl.  Unsurprisingly, the other side's favorite district judge rejected the intervention motion, so I filed an appeal from that order plus a protective appeal from the injunction on the merits of the case. 

The capital defense lawyers, being represented contra bono publico* by the Orrick firm, moved to have the merits appeal dismissed before briefing.  Today the appellate commissioner denied that motion.  On its face, the denial is "without prejudice to renewing the arguments in the briefs," but since the whole point is to preclude the briefing, that is a win for the good guys.

The Heritage Foundation is in my view on the wrong side of sentencing "reform," but remains a valuable, intellectually stimulating and honest organization.  (For example, its Senior Fellow, John Malcolm, acknowledges that increased incarceration accounts for from 25 to 35 percent of the huge decline in crime over the last generation).

Modern psychology is one of the most powerful intellectual authorities of our time. Its appeal derives in no small part from its ability to absolve us of responsibility for our misdeeds, vices, and failings. It's never our fault. It's the fault of our subconscious drives, our parents, or our genes. And the solution to our behavioral problems lies not in reforming our character, but in medicines and therapy that can cure the diseases and disorders diagnosed by psychology.

In Admirable Evasions: How Psychology Undermines Morality, the well-known writer, social critic, and psychiatrist Theodore Dalrymple shows how the findings of psychology are superficial and its net effects deleterious. Dalrymple examines the damage psychology has done to our politics by relieving individuals of moral responsibility and diminishing their ability for honest self-reflection. Theodore Dalrymple is the pen name of Anthony Daniels.

Prison Population Down, Payroll Up:  As the prison population drops 38 percent, the payroll costs for the CDCR have increased 5.3 percent, resulting in one third of officers earning more than $100,000 a year due to an increase in overtime hours worked.  Joel Hoffman of UT San Diego reports that overtime shifts have become a necessity due to a wave of retirements as well as recruitment classes slashed during budget crises.  Currently, four training academies are operating and are expected to generate 7,000 new recruits in the next three years to remedy the disparity.

CA's Death Row Runs out of Room:  Governor Jerry Brown is seeking $3.2 million from the California legislature for the addition of 100 cells for condemned inmates at San Quentin State Prison because the state's death row has run out of room.  Paige St. John of the LA Times reports that the death row population has increased steadily, from 646 inmates in 2006 to the current 751, and an average of 20 new death row arrivals are anticipated in each upcoming year.  Expanding death row is not out of the realm of possibility being that the prison's general population has decreased with the passage of AB 109 and Prop. 47.  Critics of the proposal emphasize Gov. Brown's failure to take steps to resume executions.

Fetal Homicide Debate Continues in CO:  Heated debates continue in Colorado over a fetus' legal rights after the brutal attack of an 8-month-pregnant woman, whose unborn child died when it was cut from her body, failed to result in a homicide charge.  Ivan Moreno and Nicholas Riccardi of the AP report that the state of Colorado has rejected fetal homicide proposals twice, fearing they could interfere with abortion rights.  Current law states that a person can face a murder charge in the death of a fetus "only if there is evidence that it survived apart from its mother."  In this case, there was no such evidence.

Some people may be surprised to learn that the State of Kansas has a state supreme court that tilts very heavily in favor of criminals, especially murderers in capital cases.  This is a result of the state's judicial selection process, which unwisely gave the state bar the keys to the initial entry gate to the bench, naively believing that this would result in selection of judges according to merit.  In reality, so-called "merit selection" only substitutes bar politics for general politics, a big step down.

Today the U.S. Supreme Court took up the highly controversial cases of the Carr brothers, both titled Kansas v. Carr, Nos. 14-449 (Jonathan) and 14-450 (Reginald), along with Kansas v. Gleason, No. 14-452.

Update:  Questions presented follow the break.

The U.S. Supreme Court has yet again summarily and unanimously reversed a decision of a federal court of appeals for failure to observe the limitation that Congress placed on its authority to second-guess decisions of state courts.

If two courts disagree on a question of law, which court's opinion should prevail?  Within the hierarchy of appellate review, the "higher" court's opinion prevails.  That is what we mean when say that questions of law are reviewed "de novo."  (For questions of fact, the judge or jury at trial gets broad deference.)

When a federal court considers the decision of a state court on habeas corpus, though, the situation is different.  A federal district court or court of appeals is not "higher" than the state supreme court in this sense.  Congress has never placed any federal court but the Supreme Court above the state courts in the sense of appellate jurisdiction.

So what do we do when a habeas petitioner claims in federal court that he is in jail illegally, but his legal argument has already been considered and rejected by the state court on appeal or state collateral review, and the U.S. Supreme Court has either refused or not been asked to review the state court's decision directly?  It's complicated.

The U.S. Supreme Court summarily reversed a decision of a North Carolina court regarding GPS monitoring of sex offenders and the Fourth Amendment.  The North Carolina court's error illustrates once again how far too many lawyers in the post-Mapp world have come to view the Fourth Amendment and the exclusionary rule as the same thing.  They are not.  Not even close.

As the direct cost of video recording plummets to the insignificant, there is widespread support for more cameras in law enforcement, from interrogation rooms to dashboards to the cops themselves.  From the standpoint of those who generally support law enforcement, we are confident that in the vast majority of cases where police misconduct is alleged, a recording will refute the allegation.  The most powerful example of where a video could have done a world of good, of course, is the recent Ferguson, Missouri debacle.  We now know that "hands up" was a lie and this was a fully justified use of force, but that would have been known from the beginning and the story would never have been more than a local incident if there had been a video recording.

Where the video does indeed show that the cop is a bad apple, it will be valuable in weeding him out, leaving us with a better police force.

But what about other people inevitably captured on police video?  By the nature of police work, the videos will very often record people in the worst moments of their lives.  Should those videos be public?  Might a video of a college student being arrested while sloppy drunk be used in an attack ad 20 years later when the now-mature upstanding citizen runs for public office?  Could videos be used in extortion schemes similar to those we saw with "revenge porn," except that unlike the revenge porn the person shown had no choice in the making of the video in the first place?

Accusing the police of racially-motivated abuse has become a favorite indoor sport. As the title of this entry suggests, the most prominent recent episode by far was the malicious and fake accusation that white police officer Darren Wilson murdered a peaceful and compliant Michael Brown simply because Brown was a teenage African American.  It turns out that the accusation was concocted, but it got plenty of currency, including from the Attorney General (until his own Justice Department, months later, quietly debunked it).

The National Association of Assistant United States Attorneys (NAAUSA) is an organization representing career federal prosecutors.  I was a member at one time, although my membership has lapsed.  It led the opposition of hundreds of prosecutors to the Smarter Sentencing Act, which failed in the last Congress (but has been re-introduced now).  Its opposition was cited by then Ranking Member, now Chairman, Chuck Grassley, in his statement in opposition to the Act after it got out of Committee.  It then never made it to the floor, despite then-Majority Leader Harry Reid's promise that he would bring it up  --  and that was before Sen. Reid lost the fight with his exercise bike.

"Evidence-based" sentencing is one of the catch-phrases of the sentencing reform movement.  I have never been able to figure out exactly what it means (my experience as an AUSA was that evidence has always been considered at sentencing), but I think it means that sentencing should be based on facts.

Statement of abolitionism, via the head of the National Coalition to Abolish the Death Penalty (interviewed by Salon):

"How death penalty politics radically, shockingly changed:  Death row's days are numbered..."

"Americans' Support for Death Penalty Stable.  WASHINGTON, D.C. -- Six in 10 Americans favor the death penalty for convicted murderers, generally consistent with attitudes since 2008."

For willingness to lie, belligerently and with a straight face, I have seldom encountered anything like the abolitionist movement.  The refrain is that public support for the death penalty has been crumbling in recent years, but the truth is otherwise (as abolitionists know while they continue to dissemble). 

Yolo County Questions Prop. 47 Sentencing:  Yolo County District Attorney Jeff Reisig has expressed disagreement with two Yolo County judges regarding the handling of low-level drug offenses under Prop. 47, adopted by CA voters last November.   Sarah Dowling of the Daily Democrat reports that the Reisig believes that drug offenders are less likely to pursue drug treatment without incarceration or the threat of incarceration.  He has proposed developing new sentencing guidelines for drug offenses, and Chief Probation Officer Brent Cardall agrees.  He is suggesting reforms to probation protocols that would help prevent drug offenders from avoiding treatment.

Gov. Brown To Parole Sick, Elderly Convicts:  In a cost-cutting effort, Governor Jerry Brown has proposed the parole of  hundreds of convicts who are chronically sick, mentally impaired, and over the age of 60.  Thomas D. Elias of the Napa Valley Register reports that this idea was first introduced in 2002 by Ray Procunier, the former California director of corrections under Ronald Reagan, who pointed out that Reagan cut the prison population by one-third with no increase in crime.  Since violent crimes are typically committed by young offenders in their teens and 20s, and the costs of treating sick and/or elderly inmates is extremely expensive, many consider their release to be a sensible solution to ease prison overcrowding.

Burglaries Linked to Prop. 47:  A rash of burglaries in La Cañada, California has residents wondering whether or not it is the direct result of Prop. 47, a law passed in November that released thousands of inmates from state prisoners.  Anita S. Brenner of the La Cañada Valley Sun reports that burglaries have been on the rise statewide, likely due to drug offenders, who often commit thefts and burglaries in order to feed their habit, receiving only a citation for their crimes.  State corrections officials insist that long-term studies must be conducted before the "true effect" of Prop. 47 is seen. 

CA Loosens Jessica's Law:  Jessica's Law, or Prop. 83, which forbids sex offenders from living within 2,000 feet of a school or park, is becoming less restrictive in California.  Kate Mather of the LA Times reports that the "blanket restrictions" outlined in the law will no longer be imposed, and cases will be assessed more individually.  The law, as it stands now, will still apply to high-risk sex offenders and offenders whose crimes involved children under the age of 14, who will be forbidden from living within a half-mile of a school or park.  This loosening of the law comes after a CA Supreme Court decision holding that the restrictions could not be applied in San Diego County due to a lack of residential properties 2,000 feet from schools and parks.

AP has an article headlined, "Bergdahl Charged Despite Torture, Attempts to Escape Taliban" (italics added):

Army Sgt. Bowe Bergdahl says he was tortured repeatedly in the five years he was held captive by the Taliban: beaten with a copper cable, chained, held in a cage and threatened with execution after trying to escape.

Bergdahl described his captivity in a note his lawyer made public Thursday after sharing it with the Army in an attempt to avert a court martial.

The Army charged Bergdahl nevertheless on Wednesday, accusing him of desertion and misbehavior before the enemy for leaving his post in Afghanistan in June 2009.

Despite?  Nevertheless?  Is desertion any less desertion because it is followed by bad consequences for the deserter when the enemy he places himself in the hands of turns out to be (surprise, surprise) the enemy?

"Bergdahl's lawyer Eugene Fidell said the sergeant has already suffered more than enough."  Okay, consider that in sentencing, but he is still a deserter, and his military record needs to reflect that.

Anyone who knows anything about polling will tell you that you can produce dramatic swings in results by how you phrase the question.  A common and blatant method of skewing a poll is to build arguments for one side into the question.

Public Policy Polling has done a poll on the Pennsylvania Governor's death penalty moratorium that is so blatantly worded that it reads like a parody of bad polling.  If an instructor gave his students an assignment to "draft the worst poll question you possibly can," it would read something like this:

Governor Wolf has temporarily paused executions in Pennsylvania until concerns about the risk of executing innocent people, the high cost of the death penalty, and serious issues of unfairness can be addressed by a bipartisan study commission. Do you strongly support, somewhat support, somewhat oppose or strongly oppose the decision to temporarily pause executions?

Yet even skewed to the max they didn't crack a majority.  "Strongly support" and "somewhat support" only totaled 50%.

They also asked the extremely biased "which punishment" question we have noted many times before, implying that the respondent must choose a single punishment for all murderers.

The press seems to be lapping this up, uncritically reporting the poll result with no mention of the extreme bias in the wording.  See, e.g., this article in the Wilkes-Barre Times Leader.

The real news here is that support for the death penalty remains so robust that even a badly worded question like this can't generate a substantial majority.  No one seems to be getting that.

Sen. Gillibrand Promotes Sex Assault Legislation:  In the wake of the findings that the UVa gang rape story published in the Rolling Stone in November was false, New York Senator Kristen Gillibrand still wants sexual assault on college campuses to be addressed more seriously.  Jessica Bakeman of Capital New York reports that Gillibrand's bill, the Campus Accountability and Safety Act, "would require colleges to sign memorandums of understanding with local law enforcement" in order to promote collaboration.  She hopes that victims will feel more comfortable reporting legitimate on-campus sexual assaults if they understand that law enforcement officials will be involved.

Big Data Assesses Risk and Recidivism:  The criminal justice system is leaning toward big data analytics to make predictions about future criminality, which would influence sentencing.  Dawinder Sidhu of the Baltimore Sun reports that 20 states have already adopted this approach, which purports to more accurately differentiate between high- and low-risk offenders. US Attorney General Eric Holder supports the use of risk-assessment tools, but is concerned that factors such as race and sex will inaccurately skew an individual's results.

Rape Victim Fights to Extend Florida's Rape Law:  Orlando resident Danielle Sullivan stands behind new legislation called the 43 Days Initiative Act, which would extend Florida's statute of limitations to ten years for reporting adult rape.  Ann Keil of My Fox Orlando reports that Sullivan was raped five years ago, but when she went to report it after four years, she was 43 days too late to seek prosecution.  Thirty-two states have a statute of limitations of ten years or more, while 18 states have no statute of limitation at all for reporting adult rape.  The passage of this bill would bring the state of Florida "in line with the rest of the nation."

Calaveras County Probation to Arm Officers:  The Calaveras County Board of Supervisors unanimously approved the purchase of guns for its probation officers due to the increased threat posed by high-risk offenders out on AB 109 (Realignment).  The Union Democrat reports that because so many higher risk offenders are out on Realignment, probation officers must conduct home visits accompanied by an armed Sheriff's deputy.  

Senate Committee Kills Bill That Would Shield Drug Companies:  A South Carolina Senate committee killed the bill with a 7-7 vote that would hide the names of companies that sell execution drugs, although it is still alive in the Legislature.  Jeffrey Collins of the AP reports that Democrats primarily voted against it on the grounds that condemned inmates have the right to know the identities of the companies making the drugs that will kill them.  Senator Mike Fair, in favor of the bill, has suggested that the identities of these companies can be kept secret from the public but confidentially disclosed to the person being executed and their defense team, just as with the identities of the doctors and nurses involved with executions.

The WSJ discusses the prosecution of Sgt. Bowe Bergdahl, illustrating why the pardon I predict (at a politically convenient moment for the Commander-in-Chief) will be a betrayal of duty and honor by the President even more stunning than Bergdahl's embrace of Jihad:

[T]he bigger story [in the Bergdahl case] is the extravagant price the U.S. has paid because President Obama wanted to score political points.

Readers will recall that then-Private First Class Bergdahl went missing from his post in Paktika province in eastern Afghanistan in June 2009. Fellow soldiers suspected desertion, though the Army conducted a risky manhunt to recover him...

The Associated Press has reported that an internal Pentagon investigation in 2010 found "incontrovertible" evidence that he had walked away from his post. Journalists also uncovered an exchange of letters in which the soldier wrote to his father "the title of U.S. soldier is just the lie of fools," that he was "ashamed to even be american," and that "the future is too good to waste on lies." Replied father Robert: "OBEY YOUR CONSCIENCE!"

All of this would have been known to President Obama and National Security AdviserSusan Rice when the Administration decided to swap Sgt. Bergdahl for five Guantanamo Bay detainees--all top Taliban leaders--in May 2014. Mr. Obama even invited Sgt. Bergdahl's parents to a [chipper  --  ed. addition] Rose Garden ceremony to announce the swap, while Ms. Rice declared on a Sunday talk show that the soldier had served his country with "honor and distinction."

The most shocking news this morning is reported by the Wall Street Journal:

The co-pilot of Germanwings Flight 9525 appears to have deliberately crashed the plane after he was left alone in the cockpit, according to a French prosecutor.

The captain was intentionally locked outside minutes before the A320 crashed into an alpine mountain ridge, French Prosecutor Brice Robin said Thursday. Co-pilot Andreas Lubitz, a 28-year-old German national, was silent throughout the plane's descent and was alive at the point of impact, according to the prosecutor.

Mr. Robin's conclusions are drawn from the plane's cockpit voice recorder, recovered at the crash site in the French Alps late Tuesday and analyzed by French accident investigators on Wednesday.

The recording contains screams believed to be from passengers, once they recognized the plane was crashing.

Hispanic Activists Support Tougher Immigration Laws:  SB 185, a bill in the Texas Legislature that would stop cities from enforcing policies that ban police officers from asking immigration-related questions to detainees, is gaining significant support from Hispanic Texans.  Kristine Galvan of My Fox Houston reports that supporters feel strongly that police officers need to have "all the tools available to them to keep us safe," which would include asking questions to arrestees and suspicious persons regarding legal status.  Maria Espinoza, director of the Remembrance Project, an organization that works with families of American citizens killed by illegal immigrants, is recruiting Hispanic conservatives to voice their support of SB 185.

Pension-Forfeiture Bill Proposed for Child Predator Teachers:  Washington State Senator Barbara Bailey has introduced a bill that would strip the pensions of persons in violation of the public trust, such as a teacher convicted of child molestation.  Dan Springer of Fox News reports that in the state currently, 22 of the 130 teachers who lost their licenses are convicted felons that are costing taxpayers $2 million to pay their pensions.  The Washington Education Association is challenging the bill, arguing that "the criminal justice system should have no bearing on a public employee's retirement benefits."

Violent Crime Up 26% In LA:   Los Angeles Police Chief Charlie Beck told the police commission Tuesday that violent crime in the city was up 26%.  The Chief reported that property crime rose by 11% and that serious crime has climbed 14% so far this year.  Richard Winton of the LA Times reports that the surge of violence was driven in part by a spike in aggravated assaults, which began last year and is still climbing.  The Chief noted that many of the increased assaults were domestic violence and alcohol-fueled street attacks.  Last year a Times investigation found that 1,200 violent or serious crimes had been misclassified  by the Department as low-level offenses. 

Those are the words the President's National Security Advisor, Susan Rice, used to characterize Sgt. Bowe Bergdahl.  It was politically necessary for Ms. Rice to praise Bergdahl in order to defend her boss from criticism that he had swapped five high value Taliban commanders for one traitor.

Today is all civil cases at the U.S. Supreme Court.  The oral argument calendar is three consolidated EPA cases.  The two decisions announced today were in civil cases.  Still waiting on Elonis.

The most controversial case, by far, will be the racial gerrymandering case, Alabama Black Legislative Caucus v. Alabama.   Part IV of the opinion deals with when race is the "predominant motivating factor," an issue that comes up in Batson cases.  Not sure if there will be any spillover.

In dissent, the ever-entertaining Justice Scalia takes aim at the way the majority bends over backwards to allow the plaintiffs to change their theory of the case after they were losing.

However, rather than holding appellants to the misguided legal theory they presented to the District Court, it allows them to take a mulligan, remanding the case with orders that the District Court consider whether some (all?) of Alabama's 35 majority-minority districts result from impermissible racial gerrymandering....  It does this on the basis of a few stray comments, cherry-picked from district-court filings that are more Rorschach brief than Brandeis brief, in which the vague outline of what could be district-specific racial-gerrymandering claims begins to take shape only with the careful, post-hoc nudging of appellate counsel.

Well, I know how I'm going to title my next pleading:  "Rorschach Brief in Support of Motion for Leave to Take a Mulligan."

Years ago, I got an email from a correspondent all excited about the "birther" controversy, whether Barack Obama was actually born in Hawaii or in a foreign country.  I told him to fuhgeddaboudit.  Even if he were born elsewhere, as the son of a U.S. citizen mother he was a "natural born Citizen" within the meaning of Article II of the Constitution.

Here we go again.

Abusers Take Classes, Effectiveness Questioned: In an effort to reduce domestic violence, some cities in Nebraska have been employing intervention programs for the past 20 years to teach hundreds of violent and abusive men about healthy relationships. Riley Johnson of the Lincoln Star Journal reports that attending the programs are often a requirement made by a judge in place of jail time, but there has not been sufficient tracking of how many of these men that complete the program go on to reoffend.  Minimal local research has been conducted, revealing that in 2008, 14 percent of the 184 men enrolled in a program committed another act of domestic violence upon completion, with some reoffending while still in the program.

Boston Residents Prefer Life For Bomber: A new poll of Boston residents released by WBUR reveals that 62 percent would sentence surviving Boston Bomber, Dzhokhar Tsarnaev, to life in prison while only 27 percent advocate for the death penalty.  Katherine Q. Seelye of the New York Times reports that despite the grim details of the bombings shared during Tsarnaev's trial by victims, the poll results are a reflection of the region's "longtime opposition to capital punishment."  However, the fact that Tsarnaev's crime is federal and not state, he is facing a death sentence that the Justice Department is pursuing.

Discretion for Judges Sentencing Juvenile Offenders: SF 448, a bill passed by the Iowa Senate, gives judges "wide discretion" in the sentencing of persons under the age of 18, to comply with the US Supreme Court's ruling in Miller v. Alabama which held that mandatory life sentences for juveniles are cruel and unusual punishment.  Karl Schilling of The Des Moines Register reports that a judge can take certain factors into account on an individual case-by-case basis, such as the offender's maturity or frontal lobe development.  If appropriate, a juvenile can still face a life sentence at the discretion of the judge.

Girl's Mother Wants Death In Run-to-Death Case: Heather Walker, the mother of Savannah Hardin, the 9-year-old girl who was run to death by her grandmother Joyce Hardin Garrard as punishment for telling a lie, wants to see her former mother-in-law face the death penalty.  Jay Reeves of the AP reports that during Walker's testimony on Monday at Garrard's capital murder trial, she testified that Garrard shouted at Savannah as she lay dying in a hospital bed and has shown no signs of remorse for her death.  Savannah's stepmother, Jessica Mae Hardin, is also facing murder charges for sitting by as Garrard ran the girl to her death.

The Attorney Discipline section of the U.S. Supreme Court's regular Monday orders list is not often interesting.  Mostly it's lawyers who have been disbarred by their home state courts getting routinely booted by SCOTUS as well, and that is rarely newsworthy.  But see In re Clinton, 534 U.S. 1016 (2001).

Today's list has an interesting item, though.  The Court ordered a lawyer who had submitted an unintelligible petition to show cause why he should not be disciplined.  Today they let him off with a finger wag.

A response having been filed, the Order to Show Cause, dated December 8, 2014, is discharged. All Members of the Bar are reminded, however, that they are responsible--as Officers of the Court--for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated "in plain terms," and may not delegate that responsibility to the client.

Lyle Denniston has more on SCOTUSblog.

Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

SF Deputy City Attorney Christine Van Aken began her argument in City and County of San Francisco v. Sheehan the traditional way: "Mr. Chief Justice, and may it please the Court."  Evidently it didn't, because she was immediately grilled by the Justices one might expect to lean her way for arguing a position different and narrower than the one they thought they had taken the case to decide.

Does the Americans with Disabilities Act have anything to do with the use of force by police to subdue a mentally ill and potentially dangerous person?  It shouldn't.  There is plenty of law governing use of force by police from other sources, and ADA is supposed to be about employment and public accommodations.

Lyle Denniston reports on the argument at SCOTUSblog.  I would not be surprised if the Court drops the case.  Technically, that's Dismissed as Improvidently Granted, or a DIG in SCOTUS practitioner parlance.

According to multiple sources, including this ABC News piece, the sensational story of a sadistic gang rape by (white, let's not forget that) frat boys is unsupported by any substantive evidence.  In other words, after searching for months, the police couldn't find a single witness or a single piece of forensic evidence to support the story.  Zip. The ABC article begins (emphasis added);

A five-month police investigation into an alleged gang rape at the University of Virginia, described in graphic detail in a Rolling Stone article, showed no evidence the attack took place and was stymied by the accuser's unwillingness to cooperate, authorities said Monday.

The article entitled "A rape on campus" traced the story from a student identified only as "Jackie," who said she was raped at a Phi Kappa Psi fraternity house on September, 28, 2012. Police said there were numerous discrepancies between the article and what they found in their investigation.

"All I can tell you is that there is no substantive basis to conclude that what was reported in that article happened," Charlottesville Police Chief Timothy Longo said.

Longo said Jackie first described a sexual assault in May 2013 when she met with a dean about an academic issue, but "the sexual act was not consistent with what was described" in the Rolling Stone article. When she met with police, she didn't want them to investigate the alleged assault.

She also refused to talk to police after the article was printed in November and ignited the national conversation about sexual assaults on college campuses. 

Ah, yes, our old friend the "national conversation."

Race-Baiting Hypocrisy: Last week, Illinois Senator Dick Durban criticized Republicans for forcing Loretta Lynch, President Obama's African-American nominee to replace Eric Holder, to "sit in the back of the bus" until a decision is reached on a heated human trafficking bill.  Investors Business Daily reports that Republicans made a counter-argument against Sen. Durban's accusations, because he once opposed and filibustered the GOP nominations of black and Latino appeals court judges for not being the "right kind" of minority candidate.  Republicans insist that their opposition to Loretta Lynch has nothing to do with her race, and everything to do with her policies.

Three Bay Area Police Shootings in Eight Hours: Three police-involved shootings occurred in the Bay Area in an eight hour period over the weekend, resulting in fatalities of the suspects in two of the three incidents.  Henry K. Lee of SF Gate reports that the first incident involved a suspect pointing and firing a gun at a convenience store employee, the second involved an agitated man wielding a hunting knife and replica gun, and the third suspect led officers on a high speed chase before exchanging gunfire with them.  The suspect in the third incident, Daniel Tolosa, is being hospitalized for a gunshot wound, but is expected to survive.  The other two suspects were fatally wounded by police officers.  Officers in all three incidents were unharmed.

Renewed Attention for Reformed Legislation of ABC: Legislation to remove the Alcohol Beverage Control's law enforcement powers, a bill previously proposed by Virginia State Senator Creigh Deeds, is coming under review again in the wake of the arrest of UVA college student Martese Johnson last Wednesday, which sparked the excessive force debate.  Hannah Hall and Juliana Radovanovich of the Cavalier Daily report that Deeds suggests that such law enforcement powers should be the sole responsibility of the state police, and would prevent questionable actions such as those displayed by ABC recently.  Both the investigation into ABC's actions during Johnson's arrest last Wednesday, as well as the passage of any legislation to remove their powers, will take considerable time.

Neighborhood Opposes Sex Offenders in Group Home: Residents of a Danby, New York neighborhood are outraged and "blindsided" after learning that a group home housing level 3 sex offenders is opening soon in their vicinity.  Kelsey O'Connor of the Ithaca Journal reports that Unity House, a nonprofit organization that provides housing and services to the mentally ill, chemically dependent, and physically disabled, were not required to notify the community of the home due to its small size.  Town officials were aware of Unity House moving into the neighborhood, but were also not informed of the two level 3 sex offenders that would be residing there.  Fearful residents have begun signing an online petition to restrict where these individuals can live.

Mass High Court Grants Counsel In Juvenile Parole Hearings: In a 5-2 decision, the Supreme Judicial Court ruled that inmates serving life sentences for murders they committed as juveniles are entitled to counsel and expert witnesses at their parole hearings, because it is a constitutional right.  Bob Salsberg of the AP for the Daily Journal reports that this ruling includes the requirement of the state to pay for a lawyer and any expert witnesses if the inmate is unable to afford private counsel. 

On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.

Karla Adam has this story in the WaPo, giving us another segment of the story that won't die, though its subject did over five centuries ago.

The fact-checkers at the WaPo award their maximum falsehood rating.

I've written a lot of amicus briefs in the U.S. Supreme Court.  Indeed, at this point I suspect there are few, if any, people who have written more.  My arguments have shown up in the opinions on a good many occasions, sometimes attributed but generally not.

The number of amicus briefs has risen in recent years, and their usefulness to the Court, on average, has declined.  Many are submitted just so the submitters can say they were in the case.  CJLF never does that.  If we have nothing of value to add, we don't file.  That rarely happens, but it has happened.

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus brief purporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

Heather MacDonald has this article in the Weekly Standard on the two USDoJ reports on Ferguson, Missouri.  She notes, as has previously been noted elsewhere, that the report on Officer Wilson's shooting of Michael Brown is much more than a "not enough evidence to prosecute" finding.  It is a clear exoneration of Wilson and a repudiation of the fabricated story that led to the protests and the riots.

The mainstream media, however, have now turned their attention exclusively to the second Justice Department report, the one on Ferguson's police department. The Brown report and its implications for the anticop crusade are out of sight and out of mind. The two reports were produced by different sections of the Justice Department's Civil Rights Division, and it shows. The Brown report, written by the Criminal Section, in conjunction with the FBI and the U.S. Attorney's Office for the Eastern District of Missouri, displays a striking understanding of police work. It respects longstanding legal presumptions protecting police discretion from unjustified second-guessing. The Ferguson Police Department report came out of the Special Litigation Section, known for its hostility to the police and staffed almost exclusively by graduates of left-wing advocacy groups, as Hans von Spakovsky noted in the National Interest. No wonder that it strains so hard to cobble together a case of systemic intentional discrimination out of data that show only that law enforcement has a disparate impact on blacks.

Why were the two reports released on the same day?  The diminished media interest in the Wilson/Brown report may have been a completely intended consequence.

Bill noted earlier the case of the State Bar of Texas pressing charges against the former prosecutor in the Willingham matter, and the Washington Post's astonishing publication of an article written by a partisan in the case without identifying him as such.

Now we have this article in the Corsicana Daily Sun.  This is the local paper for the scene of the crime (Navarro County, on I-45, the second county south of Dallas) and the most reliable source of objective reporting in the matter.  This article says it is "from staff and wire reports."

Evidently in Texas bar discipline cases are referred to county courts. 

The case has been assigned to Judge David A. Farr, a family court judge in Houston, but is expected to be heard in Navarro County. Jackson's attorney said he has requested a jury trial.

"We're very confident that when a jury sees this evidence, they will find that John Jackson has not done anything wrong," Byrne said.

Jury trial in a bar discipline matter?  Things are different in Texas.

Anyway, I am glad to see an aspect of the Willingham matter assigned to a tribunal where there is a shot at a fair hearing.  Previously, the Innocence Project tried to steer the matter to a judge leaning heavily in their favor, a proceeding I dubbed Charlie Baird's Circus.  Here is a post with links to a number of earlier posts on the subject.

Willingham's actual guilt is not the subject of the bar discipline matter, but perhaps will we get a useful airing and some factual findings out of it.

An End to the Rape Kit Backlog:  A new $41 million Department of Justice program aims to assist cities and communities across the country end the backlog of an estimated 400,000 untested rape kits.  Jenna McLaughlin of Mother Jones reports that several states are planning on applying for use of the funds.  Some cities, such as New York, Detroit, and Houston, have received financial support in the past for this purpose and achieved great success in clearing their backlogs and prosecuting guilty criminals.

Bill Prohibits the Sale of Alcohol to DUI Offenders:  A permanent stamp on the drivers licenses of repeat DUI offenders would alert liquor stores, restaurants, and bars that the driver is not permitted to purchase alcohol, outlined in the proposal of a new Tennessee bill.  Brittany Nicholson of News Channel 9 reports that after the third DUI offense, the driver's new license will read "NO ALCOHOL SALES" in bold letters.  It will be at the judge's discretion when offenders get their licenses back and how long their licenses will have the stamp.

Heroin Dealers Face Stricter Consequences:  Heroin and fentanyl dealers are about to face much tougher penalties if House Bill 222 passes in Maryland.  WMDT reports that if an individual dies as a result of taking heroin or fentanyl, the dealer(s) of the drugs would be charged with a felony and serve a maximum of 30 years in prison.  There is a Good Samaritan clause attached, however, that would exempt anyone that calls for help during an overdose from criminal charges.

Alabama Executions Postponed for Review:  Executions in Alabama have been delayed by a federal judge, with the consent of the Alabama Attorney General, until the US Supreme Court reviews whether the execution drug the state plans to use is humane.  The AP reports that the Justices are reviewing the effectiveness of the sedative midazolam, which has fallen under heavy scrutiny since being brought to the attention of the courts by inmates in Oklahoma as being "problematic" in executions in three states.  Supreme Court Justices will hear arguments on April 29.

The March 18 edition of the Washington Post carried a story titled, "Prosecutor Accused of Misconduct in Disputed Texas Execution Case."  The story is about the much-heralded controversy surrounding Cameron Todd Willingham.  Willingham was executed in 2004 for murdering his three children by setting fire to his (and their) house.

I reprint with little comment this beauty from NBC Connecticut:

A defense attorney was cited Tuesday after a bag of marijuana fell out of his pocket in front of the judge, according to Connecticut state police.

Police said Vincent Fazzone, 46, dropped a plastic bag containing about 2 ounces of pot inside the New London courthouse late Tuesday morning.  He was cited for possession of less than four ounces of marijuana.

The Hartford Courant reports that Fazzone took the marijuana from a client's son before court Tuesday morning. According to the Courant, Fazzone planned to sit down with the boy and have a conversation about the pot after he got home from school.

Fazzone, who is listed online as practicing at 39 State Road in Uncasville, could not be reached for comment Tuesday evening.

We hear again and again that "over-incarceration" or "incarceration nation" is the subject of considerable public angst, and that there is a "growing, bi-partisan consensus" (see, e.g., here) that we should scale back the prison population ("prison population" being the euphemism for "adjudicated criminals whose offenses are serious enough to earn them a prison term").

DHS Releases 30,000 Criminal Aliens: 30,000 illegal immigrants with criminal records have been released from custody by federal immigration officers, with US Immigration and Customs Enforcement having very little discretion in the decision.  Stephen Dinan of the Washington Times reports that a proposal to rewrite the law to allow for longer detention of serious and violent offenders has been presented to Congress.  Under current law, released criminals are to be monitored, but a more cost-effective measure would involve expedited removal of criminal immigrants from the US.

 

Bill Requires Sex Offenders to Register Where They Work: SB 31, a bill requiring sex offenders to register in the community where they work if it is a different city from where they live, was approved on Wednesday by an Illinois Senate Committee.  Tom Kacich of the News-Gazette reports that it is not uncommon for sex offenders to rent an apartment near their place of employment and spend more time there than they do their own home, leaving their location and activities unaccounted for.  Convicted sex offender Tammy Bond argues that the bill is designed to set registered sex offenders up for failure and also jeopardizes the businesses that employ them.  Senator Julie Morrison, sponsor of the bill, expressed that she is willing to make changes and adjustments to the bill.

 

Prop 47 Creates a Revolving Door for Crime:  Yolo County District Attorney Jeff Reisig has spoken openly about the challenges his office is facing as property and violent crime continue to increase in the county, due to AB 109 (Realignment) and Proposition 47.  Sarah Dowling of the Woodland Daily Democrat reports that of the 387 total inmates in the county jail that fall under Realignment, 95 of them "should be in state prison" according to Sheriff's Capt. Larry Cecchettini.  In terms of problems associated with Prop. 47, Reisig has already seen a huge spike in property crime during the short time since its passage.  That law decriminalized crimes that once resulted in state prison sentences.  He believes that offenders are committing more crimes and repeating these crimes because there is no risk of punishment.  No arrest, no court, no conviction, and no time served, allowing the cycle to continue.

 

PA Mayor Calls for Banning the "Criminal Box": Allentown, PA mayor Ed Pawlowski is planning to introduce legislation to City Council to remove a question from the city's job application form which asks applicants to disclose whether or not they have ever been convicted of a crime.  Emily Opilo of The Morning Call reports that one in four adults in the US have an arrest or conviction for a crime on their record, and "banning the box" on the application would allow these individuals to truly compete for jobs.  Background checks would still be conducted and civil service applicants would still be required to disclose their criminal histories.

 

Repeat Drunk Drivers Keep Driving  Colorado resident Ellie Phipps was driving one early morning when her car was smashed from behind at 45 MPH by another vehicle.  Her spine was shattered and she died three times on the operating table but survived.  When she regained consciousness, she learned that the drunk driver that struck her had been convicted of a DUI seven times.  Jeff Rossen and Charlie McLravy of Today report that the two-year sentence that is typically handed down to a drunk driver has little deterrent effect on the offender, and they continue to drive once released.  The National Highway Traffic Safety Administration's most recent data states that in 2013, someone was killed by a drunk driver every 52 minutes, and the FBI states that only 4,000 of the 300,000 people that drive drunk every day are caught.  Colorado Gov. John Hickenlooper says that a tougher law is in progress which make multiple DUI convictions a felony.

To follow up on Kent's post, it's not just the Lt. Gov. of Missouri who sees the disgraceful, race huckstering role played by the Department of Justice in the Ferguson shooting.  There is also the brilliant Prof. Richard Epstein of NYU Law School, who writes:

The DOJ must acknowledge that the killing of Michael Brown was a justifiable homicide. It must abandon its contrived legalisms and defend Wilson, by condemning unequivocally the entire misguided campaign against him, which resulted in threats against his life and forced his resignation from the police force. Eric Holder owes Wilson an apology for the unnecessary anguish that Wilson has suffered. As the Attorney General for all Americans, he must tell the protestors once and for all that their campaign has been thoroughly misguided from start to finish, and that their continued protests should stop in the interests of civic peace and racial harmony. In light of the past vilification of Wilson, it is not enough for the DOJ to publish the report, and not trumpet its conclusions. It is necessary to put that report front and center in the public debate so that everyone now understands that Wilson behaved properly throughout the entire incident...

Border Patrol Agents Encouraged Not To Report Groups: US Border Patrol agent Chris Cabrera from the Rio Grande Valley Sector has revealed that agents are being chastised for reporting illegal alien groups exceeding 20 individuals.  Edwin Mora of Breitbart reports that agents that do make such reports are assigned to process detainees at the station or patrol low volume areas in a fixed position as punishment.  In recent Congressional testimony the Vice President of the National Border Patrol Council told lawmakers that the Obama administration is misleading the American people by manipulating border security data. "Ask any line Agent in the field and he or she will tell you that at best we apprehend 35-40% of the illegal immigrants attempting to cross. This number is even lower for drug smugglers who are much more adept at eluding capture," he said.

 

Siblings of Murdered Parents Fight Killer's Parole:  The year before California reinstated the death penalty and life without the possibility of parole was an option, Jose Gonzalez bludgeoned James and Essie Effron to death in the basement of their store.  Now, decades later, he has been granted parole.  Kelly Puente of the Orange County Register reports on the children of the deceased couple's fight to have the parole board's decision vetoed.  Cheryl Effron and her brother Gary Effron have reached out to the public to begin a letter-writing campaign to Gov. Jerry Brown, pleading for him to reverse the decision.  If the siblings are successful, they may have to do it all again in three years when Gonzalez once again becomes eligible for supervised release.

 

Missouri Executes Cecil Clayton:  Death row inmate Cecil Clayton's efforts to have his execution delayed with claims of mental incompetence and a potentially improper lethal injection drug were not convincing enough for the US Supreme Court to stay his execution Tuesday evening.  The Associated Press reports that the convicted murderer of Deputy Sheriff Christopher Castetter, and the (formerly) oldest death row inmate in the state of Missouri, was cooperative when escorted to the execution chamber, according to a Department of Corrections spokesman.  Clayton's execution was the second this year in the state.

David Lieb reports for AP:

Missouri's lieutenant governor is accusing Justice Department officials of "fanning the flames of racial division," as the federal agency is criticizing Ferguson police for alleged racial biases following the fatal shooting of Michael Brown.

Republican Lt. Gov. Peter Kinder on Tuesday also asserted that the department was "staffed with Marxists and black radicals" and defended statements he had made a day earlier accusing agency officials of racism.

*                                                *                                               *

During an interview Monday on the conservative news outlet Newsmax TV, host Steve Malzberg suggested to Kinder that the sometimes-violent protests that followed Brown's death were in response to a false premise of "Hands up, don't shoot" that he said was promoted by President Barack Obama and Attorney General Eric Holder.

The Washington Post's Monkey Cage has this article by Frank Baumgartner and Anna Dietrich on the rates of reversal in capital cases.  The article leaves out essential facts, particularly how the picture has changed over time, to arrive at its Politically Correct conclusion.

Large numbers of capital sentences have, of course, been overturned, but the reasons have varied over time.  To simply state an overall rate from 1973 to the present is highly misleading.

In the early years, the primary reason for reversals was the Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.  In 1972 it strongly implied that discretion in capital sentencing was forbidden and mandatory sentencing was required.  Congress and the legislatures of the two largest states at the time, California and New York, interpreted the decision that way and passed mandatory sentencing laws.  Four years later, without so much as an apology, the Supreme Court said no, discretion is required, not forbidden, but it must be guided discretion.  All the sentences in the mandatory jurisdictions were thrown out.

But the high court was not done with its "bait and switch."  It continued to conjure up new constitutional requirements, often contradicting what it said before.  In 1976 it approved Florida's system with its defined list of mitigating circumstances.  In 1987 it said, no, that is invalid because the jury was not instructed to consider circumstances not on the list. 

In Teague v. Lane in 1989, the Supreme Court, at the suggestion of yours truly, adopted a rule that new rules of constitutional criminal procedure would not be applied retroactively on habeas corpus.  The same year, I did a study of capital cases in the Eleventh Circuit and found that nearly half the reversals would not have been reversed if the Teague rule had been in effect and observed at the time of the decisions.

Violent Offenders Serving Less Time in Georgia: Early paroles aren't the only perks being enjoyed by many of Georgia's most violent sex offenders and felons; they are also having their sentences pardoned entirely by the parole board.  Erik Avanier of WDEF reports that these pardoned and early paroled criminals are back on the streets before proper notification has been given to the victims and law enforcement.  House Bill 71, or the Parole Board Transparency Act, would force the parole board to be clearer and more forward about the parole and pardon process.

 

Law Could Add Years to Rape Cases:  Senate Bill 833, a new bill proposed in the state of Illinois, would allow prosecutors to charge an offender of armed robbery, home invasion, and kidnapping up to 10 years after its commission if such crimes were connected to a sex crime.  Phil Kadner of the Chicago Tribune reports that although 1 in 5 women will be raped, only 3 percent of those rapists will serve prison time.  Senate Bill 833 was introduced to remedy the state's troubling statute of limitations loophole.

 

Bill Would Protect Drug Companies' Identities: In an effort to make more execution drugs available for purchase, a South Carolina bill aims to protect the identities of the pharmaceutical companies that sell them.  Meg Kinnard of the AP reports that South Carolina, among other states, is seeing their supply of lethal injections drugs dwindle and has been forced to resort to alternative execution methods.  Other death penalty states are being challenged by inmates to reveal the identities of their current suppliers, but an execution has yet to be halted despite their refusal.  A Senate subcommittee will discuss the bill today.

Paul Sperry has this article in the New York Post:

New York public-school students caught stealing, doing drugs or even attacking someone can avoid suspension under new "progressive" discipline rules adopted this month.

Most likely, they will be sent to a talking circle instead, where they can discuss their feelings.

Convinced traditional discipline is racist because blacks are suspended at higher rates than whites, New York City's Department of Education has in all but the most serious and dangerous offenses replaced out-of-school suspensions with a touchy-feely alternative punishment called "restorative justice," which isn't really punishment at all. It's therapy.

"Every reasonable effort must be made to correct student behavior through...restorative practices," advises the city's new 32-page discipline code.

Except everywhere it's been tried, this softer approach has backfired.

There are some articles that are more important for who says it than for what is said.  The caption of this post is the headline of this column by WaPo columnist Jonathan Capehart. We have known the truth of that statement for some time, but it is significant that Capehart is saying it.  Here are a couple of excerpts:

But this month, the Justice Department released two must-read investigations connected to the killing of Brown that filled in blanks, corrected the record and brought sunlight to dark places by revealing ugly practices that institutionalized racism and hardship. They have also forced me to deal with two uncomfortable truths: Brown never surrendered with his hands up, and Wilson was justified in shooting Brown.

*                                                     *                                              *

Now that black lives matter to everyone, it is imperative that we continue marching for and giving voice to those killed in racially charged incidents at the hands of police and others. But we must never allow ourselves to march under the banner of a false narrative on behalf of someone who would otherwise offend our sense of right and wrong. And when we discover that we have, we must acknowledge it, admit our error and keep on marching. That's what I've done here.

I don't often agree with Capehart.  I don't even agree with all that he says in this article.  But I commend him for his candor.  That is certainly a step in the right direction toward an "honest conversation."

Senate Majority Leader Mitch McConnell is using an anti-filibuster technique that I have long wondered is not used more often.  The filibuster, of course, is an exploitation of the Senate's unlimited debate rule to simply stall a vote that a minority of Senators does not want to be taken.  It has a long and notorious history, most prominently for delaying the enactment of civil rights legislation for decades.

The technique I have always thought should be used more often is to tell the filibusterers, "Fine.  Stall as long as you want.  By the way, the vote on something you want very much will be taken after the vote on the bill you are filibustering."

So, there is a bill in the Senate to combat human trafficking.  Who can be against that, right?  Well, there is a provision in the bill extending the Hyde Amendment prohibition on use of federal funds for abortion.  (CJLF takes no position on this.)  Democrats are filibustering the bill.  Sen. McConnell is putting off the vote on the confirmation of Loretta Lynch.

It's amazing how people continue to get themselves in trouble by failure to obey elementary safety rules.  One such rule is that firearms, microphones, and naked babies should be handled as if loaded at all times.

The microphone failures tend to make the news most often.  Remember President Obama telling the puppet President of Russia that he would have "more flexibility" in his second term, when he didn't have to worry about those pesky voters any more?

California millionaire Robert Durst, long a suspect in two murders, was confronted with tough questioning during an interview for a documentary after foolishly ignoring his lawyer's advice not to give the interview.  Melanie Gracie West has this story in the WSJ.

In Sunday's episode, after filming had stopped, but before Mr. Durst's microphone had been turned off, he was recorded saying in private: "What the hell did I do? Killed them all, of course."

The WSJ story begins,

Robert A. Durst was charged with first-degree murder on Monday as legal experts debated whether the alleged confession of the real-estate millionaire and TV documentary subject would be admissible in court.

Really?  What debate?  What grounds for exclusion?

It is a misdemeanor in Florida to "shack up."  Not for long, though.  Michael Auslen has this story in the Tampa Bay Times.

Hundreds of Sex Offenders Arrested Crossing the Border:  US Border Patrol agents patrolling along the Texas-Mexico border have had their hands full with an unexplainable influx of sex offenders illegally sneaking into the US from Mexico.  Douglas Peter of the Standard Daily reports that within the past five months, 144 sex offenders were arrested by agents as they crossed into the US through the Rio Grande Valley Sector. 

Bill Allows Death Penalty in School Slayings: A bill introduced in Indiana, if passed, would allow prosecutors to seek the death penalty in homicide cases committed at schools or places of worship.  The AP for WLIF reports that the bill was introduced in response to a murder case that occurred on the Purdue University campus.  Cody Cousins was sentenced to 65 years for killing fellow student Andrew Bold.  He was not eligible for a death sentence due to a lack of aggravating factors as defined by Indiana law. This bill would include homicides that occur on school grounds or at places of worship on the list of almost 20 aggravating circumstances already in place in the state of Indiana.

Habitual Felon Man Accused of Attacking Elderly Mother: Habitual offender Randy Francis, a Stockton man wanted in the brutal assault of his 86-year old mother, is still at large after fleeing the scene of the attack on Saturday.  Michelle Schultz of KCRA reports that on the afternoon of Saturday, March 14, Francis was allowed entry into his mother's apartment unit by the landlord.  He then attacked the landlord, tied him up, and stole his car keys before beating his 86-year-old mother and fleeing in the landlord's vehicle.  His elderly mother's injuries were so severe she is not expected to survive.  Francis' motive is unknown. He is considered  armed and dangerous.  

An off-topic note for math geeks.

Reporters seem to be infatuated with the word "botched" when it comes to executions.  This word choice has an unwarranted and detrimental effect.  Cameron McWhirter has this article in the WSJ, referring to the postponed execution of Kelly Gissendaner in Georgia as "a botched attempt."

McWhirter has it completely backwards.  When the execution drug was found to be cloudy, Georgia officials prudently postponed the execution precisely so that there would not be a "botched" execution.

Let's get it straight, folks.  There has only been one "botched" execution in recent times, that of Clayton Lockett.  Other executions, where an unconscious inmate's body struggles for breath, have been uncomfortable for observers to watch, but the inmate still died a less painful death than most of us are going to have.

Impact Of Gov. Brown's Supreme Court Appointees:     Maura Dolan of the LA Times reports  that California Governor Jerry Brown's most recent appointees have provided enough votes on the seven-member Supreme Court to force reconsideration of a death penalty case upheld last January.  The case of People v. Grimes involves the brutal robbery-murder of a 98-year-old woman by habitual felon Gary Grimes and two accomplices.  The Court's January decision  rejected numerous claims of trial and  sentencing error and upheld the conviction and sentence with a 4 justice majority, one concurring and dissenting and two dissenting.  The same day the decision was announced, Brown appointees Mariano-Florentino Cuellar and Leondra Kruger were sworn in as justices.  In a brief order yesterday, the court announced it would reconsider the case with the two new justices voting with the two dissenters. 

Guest post by Ian:

As Kent has explained, most death penalty States and the Federal Death Penalty Act (as interpreted by the Supreme Court) require the jury to unanimously agree on the sentence in a capital case, but if the jury fails to agree, the judge is required to impose a prison sentence (usually some form of a life sentence). See Jones v. United States, 527 U.S. 373, 380-381 (1999) (interpreting 18 U.S.C. Section 3594 to require that the court impose a prison sentence if the jury deadlocks on the death sentence and rejecting a lower court interpretation that a penalty phase retrial is authorized when the jury is deadlocked on the sentence). This in effect amounts to giving one juror the power to veto any death sentence by causing a deadlock on the sentence verdict (i.e., the single-juror veto rule) and thereby requiring the court to impose a prison sentence since the laws in those jurisdictions prohibit penalty phase retrials because of hung juries.

One week ago, I gave an update on the California lethal injection litigation.  I ended by noting that I would bet that the Court of Appeal would reject the petition of CDCR and the AG to stop our suit and do so with a one-line denial.

Unfortunately, no one took the bet.  I would have won.

Will Secretary Beard and Attorney General Harris now take this case to the California Supreme Court?  I think that would be dumb, but then I thought it was dumb to take it to the Court of Appeal.

For almost three decades, I have been fighting side-by-side with state attorneys general against obstruction of capital punishment by the defense bar.  It is more than a little strange to be fighting against obstruction by a state attorney general.

Fake IRS Scam Sweeping U.S.  Fake IRS agents are calling taxpayers, claiming they owe taxes and insisting that they pay them with prepaid debit cards or wire transfers.  Stephen Chlemacher of the Associated Press reports that over 3000 people have fallen for the scam paying over $15 million.  One victim lost more than $500,000.  A Deputy Inspector from the Treasury Department told reporters that this is the largest most pervasive impersonation scam in the history of our agency.    

Utah To Post White Collar Felons On Registry:  The Utah Legislature has passed a bill that would put photographs, a physical description and criminal record of white-collar criminals on a state registry accessible to the public.  Ben Protess of The New York Times  reports that legislators are responding to a white collar crime epidemic in Utah that has cost unsuspecting investors hundreds of millions.  The registry would identify offenders convicted of securities fraud, mortgage fraud and money-laundering. For a first offense, an offender will appear on the site for 10 years. By the third offense, the offender's picture will live there permanently.  Utah's Governor has said he will sign the bill into law. 

Two police officers from other jurisdictions were shot outside the Ferguson, Missouri police station yesterday.  Ben Kesling reports in the WSJ:

Two police officers were shot early Thursday morning outside the Ferguson, Mo., police department, according to a police spokesman.

A 32-year-old officer from nearby Webster Groves was shot in the face and a 41-year-old officer from St. Louis County was shot in the shoulder, St. Louis County Police Chief Jon Belmar said at a news conference early Thursday.

"The night was fairly uneventful until about midnight," Chief Belmar told reporters, adding that some officers had begun to leave the area. Then at least three shots were fired, hitting the policemen. The officers were taken to a nearby hospital. "They are conscious, however those are very serious gunshot injuries," Chief Belmar said.

"The police officers were standing there and they were shot, just because they're police officers," he said.

Police officers from adjacent cities and jurisdictions were in front of the Ferguson police headquarters at the time of the shooting, which occurred just after midnight, police said.

"The root causes of crime" is a phrase made notorious by people who pushed social welfare programs and increased dependency on government as supposed cures for high crime rates way back in the late 1960s and 1970s.  That notoriety should not deter us from looking for the true root causes of crime. 

The "trunk cause," to continue with the arboreal metaphor, is antisocial attitudes.  Some people have the attitude that they do not have to obey rules, they do not have to respect the rights of others, and they can simply take what they want whenever and from whomever they like.  The "root causes," then, are the influences that cause people to develop such attitudes.

One root cause is bad parenting.  Two main types of bad parents are those who don't give a damn and those who care very much but are misinformed.  Prominent among the latter are parents who have bought into the "self-esteem" nonsense that kids should be lavished with praise at all times whether they have done anything to deserve it or not.

On Monday, an article was published online in the Proceedings of the National Academy of Sciences titled Origins of Narcissism in Children.  The abstract follows the break.  Lenny Bernstein has this article in the WaPo.

Utah To Bring Back Firing Squad:  In response to a global effort by death penalty opponents to restrict the availability of drugs used to euthanize condemned murderers, several states are considering alternative execution methods.  The Associated Press reports that the Utah Legislature has passed a bill that would reinstate the firing squad when execution drugs are not available.  Predictably, death penalty opponents characterized the proposal as a return to barbarism.  

Texas To Execute Gang Enforcer:  Convicted murderer Manuel Vasquez is scheduled for execution today in Texas for the 1998 killing of 51-year-old Juanita Ybarra.  Michael Graczyk of the Associated Press reports that Vasquez was carrying out a hit for the Mexican Mafia because Ybarra had refused to pay a drug tax to the gang.  Evidence introduced at trial indicates that Vasquez strangled the woman to death with a telephone cord.  Vasquez served two prior prison terms, one of which involved the beating of a man who died after he was set on fire.    

Murder Suspect Arrested In Mexico:  A habitual criminal suspected of the November 5, 2014 murder of his girlfriend in Northern California has been arrested in Mexico.  Cameron Macdonald of the Elk Grove Citizen reports that Moses Valdez fled to Mexico after the murder of Marissa Pineda De Almanza, a 37-year-old mother and Air Force Reservest.  Valdez, a gang member with a 20-year criminal record including a conviction for manslaughter, had been released from jail on "Post Release Community Supervision" (PRCS) prior to the murder.  PRCS is light supervision given to what California defines as "low level" offenders under Governor Jerry Brown's Public Safety Realignment law.  

The Oklahoma Senate has passed SB 794 making nitrogen asphyxiation an authorized method of execution in the event that the primary method, lethal injection, "is held unconstitutional ... or is otherwise unavailable ...."

The vote was 45-0.  I expected it to pass, but I am pleasantly surprised it was unanimous.  The House passed the same bill as HB 1879.  See this post.  Presumably one house will now pass the other's version, and it will be off to the governor.

Meanwhile, Utah passed a firing squad bill.  Dan Frosch has this story in the WSJ.  Not a good idea, folks.

I will be posting few if any entries or responses for the next three days or so, as my wife and I pack up our winter home, take a long flight to the mainland, and prepare to re-open our home in the DC suburbs.  With Kent in charge, as ever, I think the blog will do just fine.

Jason Riley has this article in the WSJ, titled Drawing the Wrong Lessons From Selma About America Today: Ferguson, Mo., in 2015 is not Alabama in 1965. But liberals have reasons to pretend otherwise.

Many states have a requirement that the penalty phase jury must be unanimous.  In some, including California and Arizona, that means that if the jury cannot reach unanimous agreement, at least on the first attempt, a mistrial is declared and a new jury is formed.  In others, deadlock means the defendant gets a life sentence, even if that means the view of one juror has prevailed over the views of the other eleven.

I have noted many times on this blog that I think the "single juror veto" system is nuts, and states that have it should get rid of it.  Yet legislation being considered in Florida would actually go the opposite direction, adopting this system in a state that does not presently have it.

It is all well and good for the Florida Legislature to tweak that state's system to eliminate any doubt that it complies with the Supreme Court's 2002 decision in Ring v. Arizona, an issue the high court has taken up in Hurst v. Florida.  See this post.  But there is no reason to adopt single-juror veto of the ultimate penalty decision in the process.

Kathleen Hunter reports for Bloomberg that "Senate Majority Leader Mitch McConnell said the the chamber would consider Loretta Lynch's nomination to be attorney general next week..."

Fed Medical Pot Law Introduced:  Senators Rand Paul (R-Ky), Cory Booker (D-N.J.) and Kristen Gillibrand (D-N.Y.) have introduced a bill that would legalize medical marijuana.  Niraj Chokshi of The Washington Post  reports that the measure would end the federal ban on medical marijuana, allow doctors to prescribe it and make it easier for banks to serve pot growers and marketers.  The legislation is called the Compassionate Access, Research Expansion and Respect States Act. 

Ammo Magazine Limit Challenged:  The Colorado Senate will soon vote on a bill that would repeal a 2013 ban on magazines holding more than 15 rounds.  Lynn Bartels of the Denver Post reports that SB 175 passed out of the Senate Judiciary Committee on a straight party line vote and is guaranteed to pass on the floor.  The bill is less likely to pass in the Democrat-controlled House.  A similar measure died in a House committee last month.

Bret Stephens has this column in the WSJ with the above headline, a variation on the old joke that there are three kinds of lies:  lies, damned lies, and statistics.  The subhead is, "Here's a story for the media: a community in which honest people are afraid to tell the truth."

There are two parts to the column, as there are two reports out of Ferguson.  The first part is the exoneration of Officer Wilson and the discrediting of the reports that were so widely reported and believed.  He notes that some witnesses were afraid the tell the truth and contradict "the narrative reported by the media" for fear of reprisal in the neighborhood.

Now there's a story for the media: A community in which honest people can't tell the truth for fear of running afoul local thugs enforcing "the narrative reported by the media." Or is that more of a story about the media?

The second part has to do with the second report about the larger picture in Ferguson, and particularly that report's use of statistics.  Here we run into our old adversary, the fallacy that I call The Fallacy of the Irrelevant Denominator.

I'm late getting to this, but it should not pass without note.  Last week, DOJ announced that it had no case against (now former) Ferguson police officer Darren Wilson  --  this after essentially destroying his career with menacing, and false, speculation. "Hands up, don't shoot" and all that.

[There are] several responses to the DOJ's attack on Ferguson's enforcement of its ordinances pertaining to matters such as parking. First, it is none of the federal government's business. The price of a parking ticket and the penalties for not paying them on time are issues of purely local concern.

Second, there is no basis for inferring racism from Ferguson's parking enforcement practices. Cities and municipalities throughout the nation generate revenue from the policing of parking violations and the like.

For example, Washington, DC, whose government is run by African-American officials, raises a significant amount of revenue by ticketing parking violators, including a large number of white suburbanites who park in the District (me, for example). This isn't racism or even anti-suburban bias. It's not personal; it's just business.

Third, there's an easy way to thwart "revenue generation through policing." Obey the parking rules and other municipal ordinances, and don't exceed the speed limit. In the event of a violation, pay your fine on time and don't blow off any court appearances. Is this too much to ask?

Prof. Dorothy Brown of Emory has this op-ed in the WaPo, headlined "Law schools are in a death spiral. Maybe now they'll finally change."  The article includes this passage:

While law firms can fire lawyers, law schools cannot cut their largest expense: faculty. Most faculty have tenure, which equals lifetime job protection -- as long as the school remains open. While faculty could be part of the solution to legal education's woes, we are actually the problem.

Legal scholarship is in a terrible state, with counter-intuitive incentives for faculty. Status comes with publishing, but more publishing means less teaching and interacting with fewer students. In the legal academy, second- and third-year law students select which law professors' articles to publish; while my second and third years are brilliant, they cannot select for quality the same way experts would. But even if you think the student-run system is fine, the value of legal scholarship, which is rarely read, has its skeptics, among them Chief Justice John Roberts. Scholars at the University of Florida argue in a recent study that very few articles are cited for their ideas. This broken system is also subsidized disproportionately by the tuition dollars of poorer law students.

As additional, huge problem that is neither mentioned by Brown nor considered in the notorious USN&WR rankings is a lack of diversity of viewpoint.  When students hear nothing but one side of controversial issues for their entire time in school, what you have is not true education but Maoist indoctrination in the guise of education.  When the academic consensus on any issue with political overtones can be predicted with 100% certainty merely by identifying the Politically Correct position, the consensus no longer means anything.

Guest post by Ian:

Today the U.S. Supreme Court granted review to determine the constitutionality of Florida's capital sentencing procedure because that procedure involves findings as to aggravating circumstances by the court after a majority of the jury recommends a sentence in a capital case. The U.S. Supreme Court specified the question for review as: "Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002)." Hurst v. Florida, 2015 WL 998606 (no. 14-7505) (March 9, 2015); opinion below, 147 So.2d 435 (Fla. 2014).

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case. The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.

LAPD Using Choppers To Prevent Crime:  Data indicates that the use of helicopters to patrol high crime areas of Los Angeles is reducing the number of reported crimes.  Kate Mather and Richard Winton of the Los Angeles Times report that LAPD has been experimenting with helicopter patrols over "hot spots" to deter criminals for a few years.  During one week in 2013 increased helicopter patrols resulted in a 31% drop in reported crimes.  A week later when patrols were reduced, crime shot back up. 

One of the leading backers of sentencing reform (i.e., widespread sentence reduction) is Prof. Doug Berman of the Moritz College of Law at the Ohio State University.  His blog, "Sentencing Law and Policy," is widely read, and he frequently appears at academic panels.  A Princeton and Harvard Law graduate, he has been called as an expert witness before Congress.

I do not think there is much doubt, Bill, that many persons concerned about mass incarceration want to lower sentences for violent criminals. I will be the first to say that I do not think anyone should get LWOP sentences. Also, arguably Weldon Angelos and Chris Williams were both "violent criminals" and I wanted both of them to get less than effective LWOP sentences.

You are right that some advocates will say they are only concerned with reducing sentences for the most sympathetic of defendants, but that is largely because you and fans of toughness do not want to even do that...

Boston Marathon multiple killer Dzhokhar Tsarnaev is now on trial in federal court in Massachusetts. There is an illuminating article (again, courtesy of Doug Berman) about the chances that Tsarnaev will get the death penalty. The article concentrates on the historical odds that capital punishment will be imposed and, if so, whether it will be carried out.  It's mostly a survey of statistics.

AP reports:

MILLVALE, Pa. (AP) -- A 9-month-old boy found dead in a Pittsburgh-area apartment is believed to have starved after his mother died of an apparent overdose, leaving no one to care for him, authorities said Friday.

The woman's brother found the two dead early Friday morning when he went to check on his sister, Sara Kessler, 22, after not hearing from her for several days, Assistant Allegheny County police Superintendent James Morton said.

Morton said Kessler may have died a week or two earlier. She was found on her bed, with the son, Casey, in the living room. He said there were no signs of foul play.

Criminalizing Forced Payment of Dues:   The Wisconsin Legislature has passed a right to work law that would make it a crime to require a non-union worker to pay dues as a condition of employment.  The Associated Press  reports that an employer could face up to nine months in jail if he requires private-sector workers who aren't in a union to pay dues.  Twenty-four other states have adopted "right to work" laws. 

Double Murderer Gets Death Penalty:   A man who brutally murdered his ex-girlfriend's father and sister in 2007 was sentenced to death by an Orange County, CA judge Wednesday.  Jeremiah Dobruck or the Daily Pilot reports that  after U.C. Irvine student Shayona Dhanak broke off her relationship with 30-year-old Ifekhar Murtaza, a Muslim, he blamed the girl's parents who were devout Hindus.  The court found that Murtaza and two friends went to the victims' home one evening and stabbed Syayona's father, then waited to attack other family members as they arrived.   The mother was stabbed and left on a neighbors lawn. She was in a coma for three weeks but survived.  The father and sister was taken to a nearby park and set on fire.  The family's Anaheim home was also set on fire. 

Second Sex Offender Nabbed At Border:  An illegal alien deported after serving time for molesting a child was caught trying to cross the U.S. border into Texas Wednesday.  Joe Hyde of San Angelo Live reports that Jose Margarito Rivera-Mendez is the second deported illegal alien sex-offender arrested for trying to cross the boarder at San Angelo this week.  

Most of the mantra supporting the watering down of criminal sentences focuses on what is called the "non-serious, non-violent, non-sexual" offender (actual specifics to be supplied later).  The idea is that we can release such people without any very, ummm, big (specifics supplied later on that one, too) increase in crime. 
Because the person who commits the crime (up to and including murder) is actually a victim  --  and in particular a victim of society's callousness/malice  --  it would be unjust to punish him at all.  The drive toward abolishing punishment, and replacing it with welfare, is actually what this movement is about.

The uninhibited Investors Business Daily has this editorial with the above title regarding the USDoJ report on the Ferguson, MO PD, not to be confused with the report the same day on the Brown shooting, which we noted here.

I have not had time to review this report in detail myself, so I can't vouch for the accuracy of the editorial, but I link it for those readers who are interested, and I have pasted part of it after the break.

AP reports that the penalty phase retrial jury in the Jodi Arias case was deadlocked at 11-1 for death.  Because this was the second attempt, in Arizona that means the view of the 1 prevails over the view of the 11 and Arias will get a life sentence.  (Ariz. Rev. Stat. §13-752(K))  It will be up to the judge if there will be a possibility of parole.

Most of the jurors said they believed the holdout was biased and opposed to giving the death penalty. The other jurors asked the judge on Tuesday if the woman could be replaced with an alternate, but the request was denied and jury was told to keep deliberating.

One male juror said Thursday that he became angry when the holdout indicated the death penalty would be a form of revenge. Jurors also note that the woman had acknowledged seeing a cable TV movie about the Arias case.

Is there any jurisdiction in the world using trial by jury where a deadlock of all but one for guilt and one for acquittal results in acquittal?  Of course not.  Why does any state allow that when it comes to "guilt of the death penalty"?

Here is an update on the California lethal injection suit, in which we represent two family members of murder victims, Bradley Winchell and Kermit Alexander, suing to get CDCR off the dime on establishing a lethal injection protocol.  A prior post after the hearing is here. An NBC report featuring Mr. Alexander is noted here.

A week after the hearing, Judge Chang issued the final ruling on the demurrer.  This document is essentially a reprint of the tentative ruling with the post-hearing adjustments added at the end.  That can be a bit confusing if you are not used to it.  The final ruling on the demurrer is not a decision of the case.  It just says that CDCR's attempt to have our suit thrown out at the threshold fails and the case can go forward.  CDCR was ordered to answer the allegations of the petition within 10 days.

CDCR really did not want to answer and went to extreme lengths to avoid answering.  The AG, on behalf of CDCR, filed a writ petition with the Court of Appeal.  That is, even though an order overruling a demurrer is not appealable, they want the Court of Appeal to step in with a special kind of order called an "extraordinary writ."  On top of that, they wanted an immediate stay of all proceedings in the trial court.  Since the only thing happening imminently in the trial court was the requirement that they answer, the only reason for an immediate stay was to avoid answering.

I immediately set to work writing a quickie rebuttal to the stay request, but the following day, before I could finish it, the Court of Appeal clerk called to tell me the stay was denied.  CDCR had to answer.

Coyote Deported 49Times:  A Mexican smuggler arrested while trying to bring 17 illegal aliens into the U.S, told border agents that he has been caught and deported 45 times as a juvenile and four times as an adult.  Ildefonso Ortiz of Breitbart News reports that  Victor Ramirez was arrested after a fist fight with agents who had watched him lead the group of illegals across the Rio Grande River.  In an earlier story Breitbart reported that assault charges, which would increase the penalty for a smuggler like Ramirez, are often dismissed unless an agent is seriously injured.  This probably means that Ramirez will be deported for a 50th time.  

Arias Avoids Death Penalty:  The judge will decide whether convicted murderer Jodi Arias will be sentenced to life without parole or life with parole after 25 years after the sentencing jury could not agree today.  Fox News reports that after deliberating five days, jurors remained deadlocked on a decision to recommend a death sentence or life in prison for the woman convicted of stabbing her lover, Travis Alexander, nearly 30 times, before slitting his throat and shooting him in the head.  She later claimed she murdered him in self defense.  It was the second time a sentencing jury deadlocked in the case.    

The US Supreme Court has announced its April oral argument calendar.  This is the last session for the term.  Here are the criminal and related cases:

Monday, April 20:  Johnson v. United States, No. 13-7120 will be reargued. The case deals with possession of a sawed-off shotgun as a "violent felony."  The case was argued Nov. 5, but on Jan. 9 the Court restored it to the calendar and asked for supplemental briefing on "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague."

Tuesday, April 21:  McFadden v. United States, No. 14-378, deals with controlled substance analogues and the defendant's knowledge.

Monday, April 27:  Kingsley v. Henderson, No. 14-6368, is a civil case on the use of allegedly excessive force against a pretrial detainee in jail.

Wednesday, April 29:  Glossip v. Gross, No. 14-7955, deals with Oklahoma's three-drug execution protocol using midazolam as the first drug.  A similar protocol is used in Florida.

Same day:  Mata v. Holder, No. 14-185 is an immigration case, but it deals with issues of equitable tolling and ineffective assistance that often come up in habeas corpus cases.

I'm preparing for a few debates and panels on sentencing reform when I return to the mainland next week.  In surveying the territory, I see three major questions that could use more definitive answers than they have now.  Indeed, I don't know how an informed debate is possible without pretty clear answers.

The US Department of Justice issued this report on the shooting of Michael Brown by Officer Darren Wilson.  The evidence is summarized on pages 5-8.  On point after point, Officer Wilson's claim of justifiable homicide is supported by forensic evidence, reliable witnesses, or both.  The claims that fanned the flames of racial division and touched off riots are refuted, as the witnesses making those claims are contradicted by forensic evidence or their own inconsistent statements.

Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness's own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision.

Justice in the very worst murder cases has been frustrated in some states by an international conspiracy to cut off the supply of the drugs needed for execution by lethal injection.  The drug of choice is pentobarbital, the one used by veterinarians every day to euthanize animals.  The principal manufacturer, Akorn, is obligated by its purchase agreement from former manufacturer Lundbeck, a Danish company, to restrict distribution to companies that agree not to sell it to corrections departments.

Some states are looking to alternative sources of pentobarbital, and Texas has been successful so far in getting pentobarbital from compounding pharmacies, although we don't know how much longer that will last.  Attempts to substitute midazolam (Versed) have been problematic in some states.  The Supreme Court's review of the procedure used in Oklahoma and Florida has resulted in stays in those states.

Other states have looked to getting rid of lethal injection altogether.  For the record, I have been against it from the beginning.  Punishment should not be medicalized.  Some legislatures have passed or considered laws to bring back the electric chair or firing squad.  Bad idea.  Such executions are unlikely to happen, and if they do they will play into the hands of the opponents in the PR war.  Why do you think Deborah Denno is cheering you on, folks?  Think about it.

Oklahoma is on the verge of taking a smarter approach, authorizing nitrogen hypoxia as an alternative.  As I have mentioned on this blog before, I have personally experienced hypoxia in Air Force flight training.  It doesn't hurt a bit.  You just go to sleep.

Randy Krehbiel reports for the Tulsa World that HB 1879 passed the House by a vote of 85-10 yesterday.  The bill goes to the Senate, where parallel SB 794 was approved by the Judiciary Committee last month.

The bill would take effect November 1 if enacted.  Would Glossip v. Gross be moot?  Doubtful.  That case will be argued in April 29 and decided by June.

Hawaii Considers Victims Bill of Rights:  The Hawaii Legislature is considering a bill that would amend the state constitution to provide rights to crime victims.  Hawaii's KHON reports that the bill would incorporate provisions of California's Victim's Bill of Rights of 2008, also called Marsy's Law, which gives crime victims the right to be notified of court dates, the granting of bail and the release from prison of the criminals who assaulted them or their loved ones.  

India Bans Gang Rape Documentary:  The Indian government has prohibited the showing of "India's daughter" a documentary on the 2012 gang rape and murder of the young woman on a moving bus.  Associated Press writer Muneeza Naqvi  reports that the documentary reveals a view accepted by many men and some community and religious leaders that Indian woman who go out at night, visit bars or dress immodestly are to blame if they are raped or even murdered.  The film includes an interview with one of the four men sentenced to death for luring a 23-year-old woman and her male friend returning home from a movie onto a bus, beating the man unconscious than gang raping the women so brutally she later died from her injuries. 

Nebraska Considers Post-Conviction DNA Testing:  A bill moving through the Nebraska Legislature (LB245) would expand post-conviction DNA testing to confirm convictions in cases tried before the science was available or less effective than it currently is. JoAnne Young of the Beatrice Daily Sun reports that in recent years several convictions were overturned due to the testing and that the technology is also very valuable for identifying suspects and convicting guilty criminals.  

The print and electronic media were falling all over themselves to tell the story of the Ferguson, MO shooting last summer:  The narrative, though not put in exactly these words, was simple:  A Klansman-wannabe whose day job was as a policeman shot an unarmed black teenager out of a particularly malignant form of "white privilege."  It was the latter day version of a Jim Crow  --  a quasi-slavery system of white oppression that had never really gone away, although it had (usually) been more cleverly disguised.

Inmates Rescue Guard At Rikers:  Inmates at Rikers Island helped rescue a female guard who was nearly raped by a sex offender Saturday night.  Reuven Blau of the New York Daily News reports that Raleek Young, serving a five-to-10 year sentence for raping a 13-year-old girl, managed to get inside the watch post and attack the female guard, ripping off her sweater and choking her before inmates helped guards break a plexiglass window to gain entry and stop the attack.  Initially, jail management labeled the incident as a routine use of force, but after guards protested Young was arraigned on charges including attempted rape and assault.    

GA Execution Postponed:  The scheduled execution of Kelly Gissendaner, sentenced to death for planning the 1997 murder of her husband by her boyfriend, has been postponed.  FoxNews reports that the postponment was called when corrections officials noted that the anesthetic pentobarbital, to be used for the lethal injection process, appeared to be cloudy and in "an abundance of caution" decided to stop the execution.  A new execution date has not been set.

Parolees Convicted Of Two Murders:   As California continues its "smart sentencing" policy of reduced consequences for habitual felons, two criminals whose records were filled with convictions for what the state defines as "low level" felonies have recently been convicted of the brutal murders of two women.  On February 17, KUSI News reported that Jeff Boswell, a paroled drug addict with a long record of theft related felonies, was convicted of the 2013 beating and strangulation murder of an 87-year-old San Diego woman during a robbery.  Last Friday,  Kelly Puente of the Orange County Register reported that parolee Ean Keith Brown was convicted of beating and strangling a 22-year-old Huntington Beach woman to death. 

Are you in favor of the system of stern federal sentencing that has helped reduce crime to levels not seen since the Baby Boomers were in grade school?

The 2014 Best Picture Oscar winner, 12 Years a Slave, is based on the 1853 autobiography by Solomon Northup.1 Northrup, a black freeman in New York, was kidnapped and sold into Southern slavery.2 There is an eternally haunting, prolonged, and grueling scene in the movie where Northup has a noose around his neck and strains for breath by tiptoeing on the ground to keep from being lynched.3 Other slaves on the plantation are paralyzed by fear and ignore him. Like a ballerina en pointe, Northup spends long hours in this slow motion lynching dance until he is rescued by his owner.

This Article does not suggest that incarcerating almost exclusively black men for unprecedented lengthy terms of incarceration, for crack cocaine offenses they illegally committed, is the equivalent of lynching innocent blacks. It does, however, suggest both actions have strong racial overtones; both share a lack of public outcry; both share tacit public complicity; both share governmental complicity; both share devastating effects on families, children, and neighborhoods; and both have been accomplished largely at the hands of those unknown--at least to the general public.

 

Today the Supreme Court heard argument in Ohio v. Clark.  The Confrontation Clause of the Sixth Amendment limits the use of out-of-court statements of people who do not testify as witnesses in the criminal trial, but exactly where that line is drawn has been a problem for a long time.  From the 1980 decision in Ohio v. Roberts until the 2004 decision in Crawford v. Washington, the focus was on the reliability of the statement.  Crawford threw that overboard and asked if a statement was "testimonial."  Under this rule, the reliability of the statement is at best irrelevant to whether it is excluded by the Confrontation Clause, and often the rule operates perversely, letting less reliable statements in while excluding more reliable ones.

Some of the Justices have been uncomfortable with that ever since, and that discomfort showed in today's argument over the statement of an abused child to his teacher.

So far, Justice Thomas has been alone in his view that the Confrontation Clause applies narrowly to the kinds of practices it was specifically aimed at, such as the use of depositions in lieu of live testimony.  In this view, the admissibility of most hearsay statements would be questions of state evidence law, not a federal constitutional mandate.

I think Justice Thomas has it right, and my brief takes a historical view consistent with his thesis.  There was no discussion of this view in today's argument, but the Justices seem uncomfortable with the status quo, and CJLF's arguments sometimes appear in the opinions without having been featured at oral argument.  We'll see.

Arkansas May Adopt Cell Phone Locator Law:  The Arkansas House has passed a bill that would allow police to locate a cell phone in an emergency.  Max Brantley of the Arkansas Times reports that the measure was introduced by Rep. Rebecca Petty, the mother of a murder victim.  It would require cell phone companies to provide police with location information for wireless phones in response to a call from emergency services or police in situations where the phone's owner was suspected to be at risk of physical harm.  Opponents fear such access would violate the Fourth Amendment.  The bill passed out of the House 70-8.  

Bipartisan Effort To Amend CA Prop. 47:  Republicans and Democrats are working together in the California Legislature to give voters a chance to amend Proposition 47, which voters adopted last November.  The measure lowered the classification for several so-called "low level" crimes from felonies to misdemeanors causing what some say were unintended consequences.  Among the crimes which are no longer considered felonies are firearm theft and possession of "date rape" drugs.  Don Thompson of ABC News reports that, according to police, property crimes have increased.  "I don't believe the voters truly knew what they were signing up for," said the President of the California State Sheriffs Association.  If bills to restore felony charges for possession of "date rape" drugs (SB333, AB46)  and firearm theft (AB150) are passed by majorities of both houses, the reforms would appear on the state's next general election ballot.  Another measure to allow DNA testing for those charged with crimes previously considered felonies (AB390) can be adopted by a majority vote and the Governor's signature.   

Murderer's Execution Set For March 17:  A Georgia man sentenced to death for the 1992 ambush murder of 70-year-old John Watson is scheduled for execution later this month.  The Rockdale Daily Citizen reports that days after habitual felon Brian Keith Terrell had been released from prison he stole several checks from Watson and began cashing them.  When Watson learned that Terrell was cashing the checks he called the police and Terrell's mother, who was a friend.  Two days later, Terrell waited outside of Watson's house until the older man came out to go to his dialysis appointment.  Terrell then shot Watson four times and beat him so badly that a bone penetrated his brain.  A jury recommended the death sentence following his conviction in 2001.  

CA Supremes Overturn Jessica's Law Residence Restriction:  In a unanimous decision released today, the California Supreme Court held that the provision of the state's 2006 Jessica's Law which bars paroled sex offenders from living within 2,000 feet of a school or playground is unconstitutional.  Keegan Kyle of the Orange County Register reports that the court found the restriction overly broad, prohibiting sex offenders from more than 97% of available rental housing.  The initial impact of the decision will fall on San Diego County, which is where the legal challenge to the restriction was raised.

The U.S. Supreme Court is in session and is hearing oral argument in Ohio v. Clark, regarding whether the Confrontation Clause allows a teacher to testify as to what a preschool child said about who abused him.  CJLF's brief is here.  My post at the time of filing is here.

The Court also released its orders list from last Friday's conference.  It took up a case on the interpretation of the federal extortion law.  The Question Presented follows the break.