June 2016 Archives

The initiative to fix problems that have obstructed the enforcement of the death penalty in California has qualified for the ballot.  The announcement is on the website of Californians for Death Penalty Reform and Savings.

Four years ago, the friends of murderers came within four percent of repealing the death penalty because they had the money to qualify an initiative while the forces of justice did not.  Many people believed that the choice was therefore one between repeal and the status quo of a penalty that is never enforced.

Not this time.  The status quo will be history come November, and the people have a clear choice between "end it" and "mend it."

If both initiatives pass, the one that gets the greater number of "yes" votes will prevail.

The greatest problem, once again, will be the great disparity in funding.  Softness on crime is the cause of deep-pocketed elitists who do not suffer the consequences of crime, while the base for toughness on crime consists mainly of regular folks of modest means who do.  The other side will be able to run deceptive ads, and we will have limited ability to counter them with truthful rebuttal through paid advertising.  Hopefully we will be able to get the truth out through other means.
After Judge Barry Williams acquitted Officer Caesar Goodson on June 23 of all seven charges against him in the death of Freddie Gray last year, including second-degree murder, Baltimore State's Attorney Marilyn Mosby is 0 for 3 in her "failed or flailing cases," with the latest acquittal being her most devastating blow yet, says Heather Mac Donald in the City Journal.  She writes,

The ill-fated prosecution of six Baltimore police officers for the accidental death of Freddie Gray in April 2015 was the spawn of the Black Lives Matter movement. The preposterously unjustified charges against the officers grew out of the BLM conceit that cops are racist murderers. On May 1, 2015, state's attorney Marilyn Mosby invoked Al Sharpton's extortionist chant of "No Justice, No Peace" as a motivation for her charging decisions, after rioters had destroyed the livelihoods of dozens of Baltimore's workers and small businessmen.

It is therefore fitting that Mosby's vendetta is collapsing all around her, based as it is on an ideology composed of demonstrable lies about law enforcement.

News Scan

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Additional Charges Filed Against IN Cop Killer:  A Gary, Ind., man faces new charges in addition to murder in the fatal shooting a police officer two years ago.  ABC 7 News reports that Carl Blount, 27, will face charges that include intimidation, battery and the unlicensed carrying of a handgun, stemming from a domestic violence incident that occurred before the July 2014 murder of Officer Jeffrey Westerfield.  Lake County prosecutors are seeking the death penalty against Blount at his trial, which is scheduled to begin on Feb. 6.

Sex Offender Sentenced to Life:  A convicted sex offender from New York spat blood toward his teenage victim during his sentencing hearing on Monday after the victim made a statement urging the judge to send him to prison for life.  Tim Darragh of NJ reports that Clifford Wares, 43, was given a life sentence after the judge determined he should not be allowed back into society due to his criminal history and abhorrent behavior.  Wares was convicted last month of six counts including interstate travel to engage in illicit sexual conduct, production of child pornography, online enticement of a minor to engage in criminal sexual activity and making interstate extortionate threats.  In 2011, when the victim was 13, she met Wares online and was persuaded to send nude photos of herself to him.  He later became angry when she refused to engage in bestiality, contacted her network of online friends and humiliated her.  Another teenage victim testified that she was picked up by Wares and forced to perform oral sex on him in a state park and was later threatened via fake online profiles he made.  Before his trial and after his conviction, Wares sent computer and handwritten letters to both victims and their families that contained deadly threats.  Wares claims that he is innocent, asserting that someone hijacked his identity.  The judge ruled, however, that "society didn't need to wait for him to kill someone before he was imprisoned for life."

Cops Charged in Freddie Gray Case Want Cases Dismissed:  The remaining Baltimore police officers facing charges in the death of Freddie Gray filed motions to dismiss their cases on Monday.  Kelly Cohen of the Washington Examiner reports that in their motions, Lt. Brian Rice, Officer William Porter, Officer Garrett Miller and Sgt. Alicia White all cited "defects" in the prosecution.  The motions for dismissal followed last week's acquittal of Caesar Goodson, who faced the most serious charge of second-degree murder.  Last December, Porter's trial ended in a mistrial while Officer Edward Nero was acquitted last month.  Rice is scheduled to begin trial Tuesday, followed by Miller's on July 27, Porter's retrial on Sept. 6 and White's on Oct. 13.  They all face charges of manslaughter, assault, reckless endangerment and misconduct in office stemming from the death of Gray, 25, who died in April 2015 after sustaining a fatal spinal injury while shackled in a police van.  All six officers charged pleaded not guilty.

Vigilantism in the Phillipines

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Here is what happens when government defaults on its primary obligation to protect people from crime.  Trefor Moss reports for the WSJ:

Mr. [Rodrigo] Duterte, the long-serving mayor of Davao City in the southern Philippines, was sworn in as president on Thursday, having comfortably won elections in early May after pledging to wipe out criminals. He advocates the killing of suspected lawbreakers and has publicly backed vigilante death squads estimated to have killed over 1,000 people in Davao.

"Kill them all," Mr. Duterte told a rally in March, referring to criminals and suspects. "When I become president I'll order the police and the military to find these people and kill them." During the campaign, Mr. Duterte said 100,000 Filipinos would die during the coming purge.

Mr. Duterte has tapped a loyal lieutenant from Davao, a former city police chief, Ronald Dela Rosa, to head the national force starting Thursday. Mr. Dela Rosa recently told reporters the president's target of stamping out crime in six months is achievable, as long as drug suspects are relentlessly pursued.

"They will be given the right to remain silent--forever," he said.
Backlash is building worldwide against the blasé attitude toward crime that has become fashionable among affluent people who live and work in safe neighborhoods and are rarely touched by the consequences. 

Protecting people from crime is the number one domestic function of government.  Everything else is secondary.  If we don't dump the mush-headed nonsense and get back to tough, proven measures that really work, we are only going to see more vigilantism as well as more victimization.


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Backers of mass sentencing reduction for hard drug traffickers and other federal felons have, for any practical purpose, conceded defeat.

RealClearPolitics reports:

Sen. Dick Durbin of Illinois, the second-ranking Democrat in the chamber and an author of the justice reform bill, said Republicans had offered him "little to no hope" that the legislation would move forward. He called it a "missed opportunity."

Texas Sen. John Cornyn, the Republican whip and a lead sponsor of the measure, said he'd hoped the House would move more quickly and provide momentum in the Senate, but "apparently we ran out of time."

With all respect to Sen. Cornyn, the main problem was not time.  The problem was that the bill was a bad idea from the start.  Backers refused to disclose what the total cost of the (all-but-certain) recidivist crime would be  --  that is, how many more Wendell Callahan child murder episodes we should expect.  They refused to budge on mens rea reform. They refused to acknowledge the tens of thousands of felons who will already be getting early release courtesy of retroactive sentencing guidelines. They refused to understand when the ground shifted, failing to grasp that months of increases in violent crime and heroin overdose deaths have shaken the enabling complacency of last year.


Who are the heroes in the fight to preserve our safety?  The honor roll begins with Sen. Jeff Sessions, whose valor was a beacon from the start.  It includes Sens. Tom Cotton  --  a brilliant, strong, young voice  --  David Perdue, Orrin Hatch, David Vitter, and Ted Cruz.  Behind them are incredible women and men whose diligence has been a lesson and a model for me.

Congratulations and gratitude to every one. 

Ivy League Nonsense

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A common shtick in academic circles is to say something so counterintuitive, so shocking that it is guaranteed to get you some attention.  That appears to be the angle of Cornell law professor Joe Margulies.   Professor Margulies is very concerned about mass incarceration.  So much so that when asked who should be let out of prison he had this to say:

If the professor could pick one category of the incarcerated population to release today, he said it would likely be the people who committed very serious offenses and have been in prison for a long time.

Margulies didn't name any specific offenses, but if individuals sentenced to more than 25 years in prison were released today, it would certainly include those guilty of such crimes as sexual assault and murder. 

Even though it seems counterintuitive, Margulies insisted that releasing the longtime prison dwellers would not necessarily pose a threat to society. 

"The kind of person they were when they went into prison often just doesn't exist anymore," Margulies said. "Keeping them in prison offers no chance for redemption, and no one is a monster."

They're even the group that's least likely to recidivate, or wind back up in prison, he said. He added this is common knowledge for people familiar with the criminal-justice system -- but not so obvious to the average citizen.

From a 2014 study from the Bureau of Justice Statistics:

  • About two-thirds (67.8%) of released prisoners were arrested for a new crime within 3 years, and three-quarters (76.6%) were arrested within 5 years. 
  • Within 5 years of release, 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders.
  • More than a third (36.8%) of all prisoners who were arrested within 5 years of release were arrested within the first 6 months after release, with more than half (56.7%) arrested by the end of the first year.
So in the technical sense the good professor is correct, violent offenders recidivate less than other types of offenders.  But the logical next question to ask is why might that be? 

That is because violent offenders spend more time incarcerated compared to other offenders and therefore do not have the same opportunity to commit new crimes.   Incarceration has well known incapacitating effects. 

Yet even when they are released, almost three quarters of violent offenders will commit new crimes, often violent crimes - as the BJS study shows.  And that matters.  To have your car stolen is frustrating; to be raped, beaten or murdered is to have your dignity, your humanity, even your life taken away. 

It came out today that Attorney General Loretta Lynch had a private, off-the-schedule meeting with Bill Clinton, the husband of the subject of an ongoing criminal FBI investigation into the improper handling of classified emails.

Question:  If your spouse is under investigation by the FBI, what do you think your chances are of getting a closed meeting, or any meeting, with the Attorney General? What do you think they should be?

And here I thought Freddie Gray prosecutor Marilyn Mosby was a politicized hack.

Still, we can rest assured that, ya know, nothing untoward got discussed, since Ms. Lynch had this to say when the press found out about the meeting:

"Our conversation was a great deal about grandchildren, it was primarily social about our travels and he mentioned golf he played in Phoenix," said Lynch Tuesday afternoon while speaking at the Phoenix Police Department.

Or, as Bill Clinton might say, looking us right in the eye, "I did not discuss emails with that woman, Ms. Lynchinski."

All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  

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CA County to Begin its First Death Penalty Trial in Years:  Jury selection is in its third week in Contra Costa County's first death penalty trial in years.  Nate Gartrell of the San Jose Mercury News reports that Darnell Washington has been charged with murder in the death of Susie Ko, 55, who was found murdered in her Hercules, Calif., home in October 2012.  He also faces charges of carjacking, burglary and robbery.  Two months prior to Ko's murder, Washington broke out of a San Bernardino jail with the help of his wife, Tania Washington, before going on a months-long crime spree that ended when the couple was arrested in Washington state days after murdering Ko.  Tania Washington pleaded no contest to manslaughter for her role in the crime and was sentenced to 23 years.  Darnell Washington's trial is estimated to begin in early July.

Synthetic Marijuana Use Reaches Epidemic Levels in NY:  A Brooklyn intersection has a new reputation for being one of the worst spots in the city for synthetic marijuana use, reaching "epidemic" levels.  Sarah Wallace of NBC New York reports that despite it being illegal to sell in the state of New York, synthetic marijuana -- known as K2 --  are still being dealt by stores near Broadway and Myrtle, an area now regarded as the best place to find the drug.  K2 is a new chemical concoction that is more potent than synthetic marijuana, often causing users to hallucinate, experience rapid heartbeats and seizures, and can even be deadly.  In Spring 2015, synthetic marijuana sent 160 people in New York City to hospitals in a little over a week, and thousands more were hospitalized across the state.

ID Officer Wounded, Suspect Dead:  A shooting on Tuesday night left one Boise police officer wounded, the suspect dead and a male victim suffering from life-threatening injuries. KTVB reports that the officer was shot in the chest after he and other officers were confronted outside of a residence when they responded to a 911 call.  The male suspect died at the scene after officers returned fire, though it is unclear whether he was struck from one of the officer's bullets or if he shot himself.  The wounded officer was wearing a ballistic vest and his injuries are not considered to be life-threatening.  The identities of the involved parties are yet to be released.

WI Woman Added to FBI's Most Wanted List:  A Milwaukee woman who fled after fatally shooting a pregnant woman three months ago has been added to the Ten Most Wanted Fugitives List, the FBI announced Tuesday.  Fox 6 Milwaukee reports that Shanika Minor shot Tamecca Perry, 23, in the chest on March 6 over an arguments regarding loud music.  Minor told her mother shortly before the incident that she felt Perry had disrespected her.  Perry was nine months pregnant with her third child, who was due five days after the shooting.  Her two other children were present when she was killed, but were unharmed.  Perry's unborn child did not survive the shooting.

Another Take on Civil Liability

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Last week we had some discussion of a WaPo op-ed by USCA2 Judge Jon Newman on civil remedies for police transgressions.  See my post on Friday and Bill's on Saturday.  For another perspective, see this post by L.A. Deputy Sheriff Sean Van Leeuwen at the blog of the Association for Los Angeles Deputy Sheriffs.

Here's an idea.  Let's make Federal Appellate Court judges civilly liable for every decision they have reversed by the Supreme Court.  Unlike cops, who have to make real time decisions affecting legal rights, often under life-threatening circumstances, judges have the luxury of time, law clerks and quiet, safe, well-appointed chambers to make sure their legal decisions are correct. Why shouldn't they be accountable for rendering legal opinions the Supreme Court determines are wrong?
Interesting thought.  If Judge Stephen Reinhardt of USCA9 had to fork out cash for every decision of his the Supreme Court later determined was wrong, he would be standing on a street corner with a cardboard sign.
An initiative to establish rights of victims of crime has qualified for the November ballot in Montana, reports Dustin Klemann of MTN News.

Here is the summary:

CI-116 would add a new section to the Montana Constitution establishing specific rights for crime victims. The rights enumerated include the right to participate in criminal and juvenile justice proceedings, to be notified of major developments in the criminal case, to be notified of changes to the offender's custodial status, to be present at court proceedings and provide input to the prosecutor before a plea agreement is finalized, and to be heard at plea or sentencing proceedings, or any process that may result in the offender's release. CI-116 guarantees crime victim's rights to restitution, privacy, to confer with the prosecuting attorney, and to be informed of their rights. CI-116 defines specific terms and requires no further action by the Legislature for implementation. CI- 116, if passed by the electorate, will become effective immediately. Fiscal impacts are expected for the Office of the Public Defender, Judicial Branch, Department of Corrections and local governments from passage of CI-116, but those costs could not be accurately determined at this time.
The full text is here.  Compare Article I, §28(b) of the California Constitution.

News Scan

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CA Murderer's Death Sentence Upheld:  The California Supreme Court upheld the death sentence on Monday of an Orange County man who organized a fatal robbery and then convinced his girlfriend to kill a witness over two decades ago.  Kelly Puente of the OC Register reports that in 1991, William Clinton Clark, 62, was the mastermind behind a Fountain Valley computer store robbery, in which Kathy Lee was killed as she arrived to pick up her son.  Three years later, Clark persuaded his girlfriend, Antoinette Yancey, to murder Ardell Love Williams, 19, by luring him to a location with a promise of a job before he could testify at Clark's trial.  Yancey was sentenced to life in prison without parole for her role.  Clark was convicted in 1996 of two felony counts of murder.  He will remain on death row.

Another Deadly Weekend in Chicago:  Chicago saw yet another bloody weekend as numerous shootings continue to plague the city, mostly fueled by its incessant gang war.  Warner Todd Huston of Breitbart reports that 51 people were wounded and seven were killed over the weekend, topping 2014 and 2015 records.  There were at least 48 isolated shooting incidents over a four-day period, with 28 occurring on Saturday and 20 on Sunday.  Thus far in 2016, 311 total people have been slain across Chicago, 285 males and 26 females.  In addition to the staggering number of homicides are the 1,375 men and 146 females that have been wounded in the violence.

CA Woman Arrested and Released 41 Times:  The perpetual arrests and releases of a repeat offender have prompted Shasta County residents to question whether the California's justice system is working and if criminals are learning their lesson.  Action News Now reports that Christina Burke of Redding has been arrested and released 41 times, with nine of them occurring in 2016 alone, and local law enforcement cite AB 109 and Proposition 47 as contributing factors in her continual arrests and releases.  AB 109, aimed at maintaining a low prison population, has resulted in habitual offenders like Burke being released much quicker, while Prop. 47 has reduced several property and drug offenses from felonies to misdemeanors.  Law enforcement and residents alike are taking notice to criminals' lack of accountability under the measures, forming groups such as Take Back Redding and Redding Crime Watch.  Residents also filed a petition called "Dear Governor Brown, we are taking a stand."

The American Constitution Society hosted a panel that addressed this topic:

Marginalized, disproportionately low-income communities, including communities of color, sexual minorities and transgender people, have a fraught relationship with the criminal justice system. Overcriminalization and overincarceration, the inevitable consequences of our current criminal justice policies, rob marginalized communities of financial and human capital, and exacerbate these communities' lack of political and economic power. Over- and under-policing (in which police aggressively police communities for minor crimes while failing to prevent or investigate major, violent crimes) fail to adequately address threats of violence, both at the hands of criminals and the police. What measures best empower these communities to achieve the political and economic influence to ensure self-determination and prevent continued mistreatment by the criminal justice system?

I am grateful that I was invited to present a dissenting viewpoint, which I started out by noting, in my typically diplomatic way, that I disagreed with the ACS's conclusions, but not as much as I do with their even more misguided premises.

The discussion is here.  I am especially in the debt of the panel's moderator, Kanya Bennett, Legislative Counsel to the Washington Office of the ACLU.

The War on Cops and the Spike in Murder

Murder has been on a shocking surge for a year and a half.  There are those who want to pretend the cause is a mystery, or that it's a statistical blip, or that even if it's real, It doesn't mean  --  in the favorite phrase of those who blink reality  --  that "the sky is falling."

It is of course true that the sky is not falling, as it tends not to.  But murder is spiking, and it has a cause.

The main cause is that the police have become considerably more cautious due to a cascade of unhinged criticism.  

The police deserve and get scrutiny.  They are public employees with tremendous power. The problem is not scrutiny.  The problem is bansheeism.

The best in the business in diagnosing the what we're facing is Heather MacDonald.  Her C-SPAN interview is here.
Kent points to an excellent article by Professor Richard Epstein in the current issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 3).  The issue also contains an interesting student note on the history of the John M. Olin Fellowship program sponsored by the Federalist Society. 

As a fellow Olin fellow, I can attest to the strengths of the program.  Each year this competitive fellowship places smart, ambitious conservative and libertarian scholars at some of the finest law schools in the country.  My fellowship at the University of Pennsylvania Law School was a time that I treasured, enjoying the privilege of working closely with the keen minds of people such as Stephen Morse, David Skeel, Stephanos Bibas, and Paul Robinson to name just a few. 

But the stark reality is that there is very little intellectual diversity in the legal academy and despite the efforts of the Olin Fellowship, conservative and libertarian thinking is an endangered species among law faculty: 

As Eugene Meyer, the President of the Federalist Society, observed, Dean Kagan both deserved and did not deserve credit for increasing ideological diversity on Harvard's faculty. Meyer posed the following hypothetical to illustrate his point: Say you have a school with 100 members on the faculty, one of whom is conservative. If you hire two more conservatives, do you say that the number of conservatives has tripled, or do you say that only three percent of the faculty is conservative?  It is also notable that in the ten years since Dean Kagan hired Manning, Goldsmith, and Vermeule, not a single conservative has been hired at Harvard (at 918-19). 

It is a real shame that such conditions continue in the Academy because it leads to an intellectual sterility that is at least partially responsible for irrelevancy of legal scholarship.   Judge Posner bemoans the flaccidity of legal scholarship - well when everyone is saying essentially the same thing then there isn't much insight to drive decision making. 

Linguistic Relativism

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Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.
-- Justice Robert Jackson, Brown v. Allen, 344 U.S. 443, 535 (1953) (opinion concurring in the judgment).

If law is to be law and not whim, then words must have the power to constrain.  If the power to interpret words has no limit, if words are infinitely elastic and can be stretched to support whatever result the interpreter wishes, then the people do not have the power to govern themselves through the democratic process.  The laws and constitutions they enact are nothing but staff recommendations to the interpreters, who make the actual decision.

In the current issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 3, pp. 583-630). Professor Richard Epstein has an article titled Linguistic Relativism and the Decline of the Rule of Law.  It is well worth reading.  Readers of this blog may be particularly interested in pages 607-610, on the "judicial adventurism" of the Supreme Court's misinterpretation of the Cruel and Unusual Punishments Clause.

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OH Struggles to Find Lethal Injection Drugs:  Just over six months ahead of Ohio's first scheduled execution since 2014, and with two dozen other convicted killers scheduled to die over the next three years, the state has not managed to secure a supply of lethal injection drugs.  Alan Johnson of the Columbus Dispatch reports that Ohio Department of Rehabilitation and Correction officials have attempted to secure a supply through several avenues, including compounding pharmacies and from overseas sources, but all their efforts have been in vain.  The state's biggest hurdle, which affects all states with the death penalty, is resistance from major manufacturers that either stopped making drugs used for lethal injection or refuse to sell them to states for use in executions.  Currently, Ohio law only allows lethal injection for executions, and transitioning to an alternative method, which some officials have suggested, would require changing state law.  The state's next scheduled execution is on Jan. 12, 2017, when Ronald Phillips is set to die.

SCOUTS Upholds Gun Ban for Domestic Violence:  On Monday, the U.S. Supreme Court upheld the broad reach of a federal law that bans people with a domestic violence conviction from owning firearms.  Fox News reports that the high court ruled, in a 6-2 decision, that reckless domestic assaults can be considered misdemeanor crimes to restrict gun ownership.  The case involved two Maine men, Stephen Voisine and William Armstrong, who were both found guilty of misdemeanor domestic assaults which prohibited them from possessing firearms.  Voisine argued that the law only covers intentional acts of abuse and not those committed in the heat of an argument, while Armstrong argued that the ban violates his second amendment rights.  Voisine's argument was rejected and although Armstrong's was not addressed in the ruling, it was questioned during oral argument.

ISIS Targets SF, Las Vegas in New Video:  The Islamic State (ISIS) released an ominous video on Sunday showing footage of San Francisco landmarks and the Las Vegas Strip in what appears to be a threat of attack on the two cities.  Adelle Nazarian of Breitbart reports that in the video, a man providing English voiceover, who introduces himself as Abu Ismail al-Amriki ("the American"), encourages "attacks in San Francisco in the same vein as the Pulse incident in Orlando."  Sunday's video in the third released by the terrorist group that claims responsibility for the Orlando attacks and advocates that others follow the example of the gunman, Omar Mateen.

Still Waiting for Justice

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Brenda Van Dam's life changed forever 13 years ago when her seven-year-old daughter, Danielle, went missing from her bedroom and was later found murdered.  Danielle's killer, David Westerfield, was convicted of kidnapping, murder, and possessing child pornography and was sentenced to death.  Today, over a decade later, he continues to sit on California's death row.  In this powerful op-ed penned by Van Dam in the San Diego Union-Tribune, she writes,

Now, 13 years later, he still waits for his sentence to be carried out, living at taxpayers' expense, the taxes I pay, at San Quentin's death row. And we who loved Danielle, searched for Danielle, wept for her and sat through every moment of the trial also still wait for that sentence to be carried out. We wait still for justice.

Sadly, we are not alone either. While Westerfield has been on death row for 13 years, there are others who have committed terrible crimes against innocent people, including against those who serve and protect us in law enforcement, and against our children, who wait on death row. And their families, like us, wait for justice to be done.

Our legal system, which is supposed to work for the people, has evolved into a frustrating patchwork of legal blockades and stalling tactics that has allowed attorneys for death row inmates to abuse the system to drag out and delay death sentences from being carried out for, in some cases, several decades. Some convicted death row inmates even outlive the family members of their victims. The family members die never having seen justice done to those who changed their lives forever.

Fortunately, the people of California have an opportunity to change that. Thanks to the hard work of a number of law enforcement professionals, public safety officials and elected officials, the California Death Penalty Reform & Savings initiative was submitted to elections officials throughout the state in order to qualify a reform measure for the November ballot.

The U.S. Supreme Court today decided the case of the bribery convictions of a former Governor of Virginia and his wife, McDonnell v. United States.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts. The parties did not agree, however, on what counts as an "official act." The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five "official acts." Those acts included "arranging meetings" for Williams with other Virginia officials to discuss Star Scientific's product, "hosting" events for Star Scientific at the Governor's Mansion, and "contacting other government officials" concerning studies of anatabine. Supp. App. 47-48. The Government also argued more broadly that these activities constituted "official action" because they related to Virginia business development, a priority of Governor McDonnell's administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official--without more--does not count as an "official act."
The Court agrees with McDonnell on the main point in a unanimous opinion by Chief Justice Roberts.  To hold otherwise would raise serious First Amendment concerns.

The Court rejects McDonnell's attack on the "honest services" statute as unconstitutionally vague, a holding based in part on the narrow interpretation in the previous part of the opinion.

The Court declines to address McDonnell's "insufficient evidence" claim because the parties have not yet had a chance to address it in light of the Court's clarification of the elements of the offense and therefore leaves that issue to the Court of Appeals on remand.  That is important because a reversal on incorrect jury instructions (the main point addressed in today's opinion) permits a retrial, but a reversal on insufficient evidence is effectively an acquittal and precludes retrial.
The U.S. Supreme Court today decided Voisine v. United States:

Federal law prohibits any person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm. 18 U. S. C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the "use . . . of physical force." §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.
Kent has a thoughtful post about Judge Jon Newman's suggestions to broaden the means to hold police accountable for infringing the constitutional rights of citizens.  I would add for the moment only four brief points which, together, make me wonder whether Judge Newman's op-ed is fully forthcoming.

First, the Judge uses the Freddie Gray acquittal as a springboard to note the supposed inadequacies of present law, but never hints that Gray's family already filed suit and, ten months ago, received a multi-million dollar settlement.  It is impossible for me to believe either that Judge Newman did not know this or thought it irrelevant.

Second, the Judge likewise never hints that the issue of practical and legal immunity for the police has been considered carefully by the Supreme Court.  Kent remedies this deficiency, but it should never have been Kent's job.  Why is a federal appellate judge entirely failing to disclose to a lay readership the fact and the substance of the Supreme Court's thinking?

Third, Judge Newman simply assumes that the Baltimore police were liable for tortious, if not criminal, conduct.  He does this without quoting a single word from the Baltimore trial court's factually detailed opinion, which, to put it gently, puts Judge Newman's assumption in doubt.

Last, Judge Newman says this: "Juries, and even judges in non-jury trials, are reluctant to convict police officers of a crime, even in the face of ample evidence." Yes, well, that might be because, as Judge Newman also full well knows, and in other contexts insists upon, "ample" evidence is insufficient to convict.  It takes evidence proving every element of the offense beyond a reasonable doubt.

Can we expect something more balanced than this from a veteran federal judge?
Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.

The Silence of the Civil Liberties Lambs

When there is an acquittal in a high-profile prosecution  --  particularly a prosecution that reeks of political opportunism and racial edginess  --  the civil liberties and criminal defense bars often whoop it up.

There was such an acquittal yesterday.  But, from the usual criminal defense spokesmen, I'm not hearing any celebration. Indeed, I'm  not hearing much of anything. 


It's no big secret:  Because the person acquitted was a cop  --  the lead Freddie Gray defendant.

He was acquitted notwithstanding a hostile jurisdiction, a grandstanding prosecutor, a courthouse mob outside the building that could be heard inside, a poorly-hidden assumption of malice within the dominant culture, the widespread deep-sixing of the presumption of innocence, a long-ago trial and conviction in the media, and an overall circus atmosphere.

These are exactly the features of criminal justice that civil libertarians frequently condemn.  They do so in the name of providing a fair process to all, no matter how ugly the crime or how despised the accused.

Unless, that is, they're the ones doing the despising.  In that event, good luck in hearing, from the civil liberties lambs, a single BAAAA.

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Death Penalty Sought in FL Doctor's Murder:  Prosecutors announced Wednesday that they are seeking the death penalty against two suspects in the murder of a Florida doctor.  One of the suspects is the victim's husband.  Fox News reports that Mark Sievers, 48, and Jimmy Rodgers, 26, will face capital punishment in the death of Teresa Sievers, 46, a holistic physician and mother of two who was found bludgeoned to death in her home last June.  A third assailant, Curtis Wayne Wright, 46, pleaded guilty to second-degree murder in February in exchange for a 25-year sentence and agreed to assist prosecutors in their case against Mark Sievers.  Investigators uncovered a plot last December orchestrated by Mark, in which he directed Rodgers and Wright to attack Teresa and promised them a chunk of the $4.4 million life insurance payout.

45 Foreign Fugitives Arrested this Week:  U.S. Immigration and Customs Enforcement (ICE) issued a report this week stating that 45 foreign fugitives were arrested this week for serious crimes committed in their home countries.  Maria Biery of the Washington Examiner reports that in an operation dubbed "Project Red II," U.S. Marshals and ICE focused their efforts on individuals with Interpol red notices.  Those arrested were wanted in 22 countries on a multitude of charges, including fraud, homicide, illegal gang activity, drug trafficking, rape, embezzlement, extortion and kidnapping.  A total of 1,789 foreign fugitives have been removed from the U.S. since October 2009.

Cop Stable After Shooting; Suspect in Custody:  The Pennsylvania police officer shot multiple times and seriously wounded Friday morning is in critical but stable condition, and a suspect has been taken into custody.  Dan Stamm and Brian X. McCrone of NBC 10 report that the Folcroft Borough officer, Chris Dorman, 25, was shot in the neck, face and shoulder in the rear of an apartment building while responding to a report of people smoking narcotics.  Dorman is a one-year veteran of the force.

A Clue from Brexit

Everyone writing on a blog will have one take or another from yesterday's vote by the UK to leave the European Union, and I don't want to be an exception.

The thing that most struck me about the backing for remaining in the EU was how much it resembled the backing in this country for undertaking sentencing reform: The "bi-partisan consensus;" nearly uniform enthusiasm from academia, think tanks and those who see themselves as better educated; overwhelming support from the mainstream press; likewise from the urban and the urbane; and the cheerleading from celebrities.

And one more thing  --  the premature, and false, claim of victory.  The most recent British polls showed the public favoring remaining in the EU, just as sentencing reformers claim majority public support for giving judges more discretion (at least until the unwelcome fact comes out of what happens when they use it). 

Our Betters inside the capital city and in academia are not about to take any lessons, either from the Brexit vote or from the fact they can't move sentencing reform.  The idea that "We Know Better than You People with Big Hair," and the silky self-righteousness behind it, are too firmly entrenched.

Those of us favoring the present national sentencing structure and the crime reduction it has helped bring about would be ill-advised to look for any congratulations.  We'll have to be content  --  so it would seem for the moment  -- merely to win.

This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.

As Bill noted earlier today, Officer Caesar Goodson was acquitted today of charges arising out of the death of Freddie Gray.  Because Goodson chose to waive a jury trial and have his case decided by the judge, we have a full explanation of the verdict.  The transcript is here.

The case is State v. Goodson, Circuit Court for Baltimore City, No. 115141032.
Hat tip to Prof. Doug Berman for posting this entry, noting and linking a Reuters news story.  It seems that the scandalous Stanford rape "sentence" has awoken the very liberal California state legislature to the need for  --  ready now?  --  mandatory minimum sentencing.

I don't know whether it's more unfortunate or more revealing that it takes a politically incorrect crime to jar these people into action.  My own view (for the last few decades) has been that judges, like other people, operate better with rules than without.

There are numerous crimes so degrading, damaging and/or vicious that no combination of mitigating factors warrants a degree of leniency that would shock a normal person.  That is where the legislature needs to step up.  Giving judges a considerable degree of discretion in the great run of cases  --  which we should  -- does not require or even suggest giving them 100% discretion 100% of the time.

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La. Cop Killed by Probationer:  A Louisiana detective was fatally shot during a pedestrian stop on Wednesday in what the Jefferson Parish Sheriff called "a cold-blooded murder."  Phil Helsel of NBC News reports that Detective David F. Michel, Jr. was shot once in the back and two additional times at point-blank range as he fell by Jerman Neveaux, 19, who is currently in custody.  Neveaux confessed to killing the officer because he was on probation and did not want to go back to jail for possessing a firearm.  Michel had been with the sheriff's office since 2007.

AR High Court Upholds Lethal Injection Secrecy Law:  In a 4-3 decision Thursday, the Arkansas Supreme Court ruled that the state can continue to administer lethal injections to death row inmates without supplying them with information about the manufacturer, seller or any other information about the drugs, reversing a lower court ruling.  Claudia Lauer of the AP reports that the ruling stems from a challenge to the state's secrecy law by a group of inmates, who argued that it is unconstitutional to have such laws because the lack of disclosure of the information deprives inmates' assurance that the punishment would not be cruel and unusual. Arkansas currently has eight pending executions, though it has not been made clear when the state will be able to resume executions.  It has been over a decade since the state carried out an execution.

SCOTUS Deadlocks on Obama's Deportation Amnesty:  The U.S. Supreme Court deadlocked in 4-4 vote Thursday on President Obama's deportation amnesty, leaving in place a lower court's ruling that blocked the White House from shielding millions of illegal immigrants from deportation.  Stephen Dinan of the Washington Times reports that the Fifth Circuit Court of Appeals ruled that Obama's program broke immigration law, and many agreed that the president attempted to subvert the Constitution.  Obama's program, announced in 2014, would have applied to as many as five million illegal immigrants who either came to the U.S. as children or who have children that are citizens or legal residents, granting them three-year stays of deportation, work permits, Social Security numbers and other taxpayer benefits.

Freddie Gray Prosecution Implodes

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Small-time Baltimore drug dealer Freddie Gray was alive when he was placed in a police van and all but dead when he came out (he died a few days later).  Six police officers, three white and three black, were charged with various crimes related to his death.

I said at the time (e.g., here, here, here and here) that the States Attorney, Marilyn Mosby, struck me as a politicized, grandstanding amateur who would be headed for trouble.  In any other context  -- that is, where the defendants were not police  --  her behavior, consisting of events indistinguishable from campaign rallies, would be scorched by civil liberties groups as unprofessional if not borderline unethical. But such groups have been quieter than the proverbial church mouse.  I guess cops aren't worthy of due process.

Here are the results so far:  In an overwhelming black and liberal city, the first officer got a mistrial.  The second got an acquittal on all counts. This morning, the third, against whom the most serious charged was lodged (negligent homicide), was likewise acquitted, also on all counts.

I have no personal knowledge of the facts of the case.  An acquittal does not mean the defendant didn't do it.  But to go to trial three straight times and get not a single count of conviction is, in my experience, nearly unprecedented.  I strongly suspect the court found this prosecution just as ill-conceived and ideological as I did and, more important for the purposes for which trials are convened, just as lacking in solid evidence of guilt.

Mixed Result in DUI Cases

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In three consolidated cases, of which the lead is Birchfield v. North Dakota, No. 14-1468, the U.S. Supreme Court held today:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
CJLF filed a brief in one of the three, Beylund v. Levi, No. 14-1507, a civil case challenging the suspension of Beylund's driver's license for refusing a blood test after being informed he could be criminally prosecuted for refusing.  In addition to the legality of the requirement, CJLF argued that the suspension was valid regardless, as the federal Fourth Amendment exclusionary rule does not apply to civil proceedings.  The U.S. Supreme Court left that question open for the North Dakota Supreme Court on remand on the theory that state law might "provide a remedy" not required by federal law.

Although we did not get everything we wanted, this is mostly a win for the life-saving cause of getting drunks off the road. 

The New CounterTerror Strategy: Kumbaya

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I only wish the Administration's strategy to dismantle our successful sentencing system  --  the one that has helped crater crime rates for a generation  --  more closely  resembled  its "strategy" to "dismantle" Jihad.  Yesterday, Attorney General Loretta Lynch explained the battle plan against Islamic terror:

"Our most effective response to terror and hatred is compassion, unity and love," Lynch said after meeting with officials in Orlando, Fla., on Tuesday -- a week after a gunman at a gay nightclub killed 49 in the deadliest mass shooting in modern American history.

When I was at camp at about age 13, I thought it would be a good idea to try to impress a 13 year-old girl by singing "Kumbaya." This didn't work out too well, but the worst that happened was that she rolled her eyes and paid attention to another boy.  

I wonder if that's the worst that will happen when we sing "Kumbaya" to Khalid Shaikh Mohammed.

The fecklessness of these people in understanding what we're facing cannot be captured in words.

UPDATE:  Scott Johnson is also embarrassed for Ms. Lynch, if "embarrassed" conveys the extent of it.

Jason Riley nails it at the WSJ.

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IN Killer to get Execution Date:  A Gary, Ind., man on death row for murdering his family nearly a decade ago is getting to closer to receiving an execution date.  Ruth Ann Krause of the Post-Tribune reports that Kevin Isom, 50, was given the opportunity during hearings on March 14 and May 2 to sign a petition to file post-conviction relief.  Lake Superior Court Magistrate Natalie Bokota repeatedly informed him that failure to sign the petition would result in the post-conviction appeal being taken off the table, allowing for an execution date to be set.  An order has been issued asking that the Indiana Supreme Court set an execution date.  Isom was convicted of three counts of murder in 2013 for the August 2007 shooting deaths of his wife, Cassandra Isom, 40, and stepchildren, Michael Moore, 16, and Ci'Andria Cole, 13, all of whom were shot multiple times.

CA Assemblymen's Bill would close Prop. 47 Loophole:  Two California Assembly members introduced legislation Tuesday that aims to protect small businesses from shoplifting syndicates taking advantage of the reduced sentences under Proposition 47.  The Santa Clarita Valley Signal reports that Assembly Members Tom Lackey (R-Palmdale) and Scott Wilk (R-Santa Clarita) have proposed AB 2287, which would allow prosecutors to use conspiracy laws to target organized shoplifters and charge individual thieves with felonies if they steal more than $950 in a six month period.  Prop. 47, approved by voters in 2014, reduced certain crimes from felonies to misdemeanors, including theft, so long as less than $950 worth of goods was stolen at a time.  Since Prop. 47's implementation, criminals have become wise to this loophole, which has caused retail theft to almost double.  Wilk describes the legislation as "a common sense reform to fix an unintended consequence of Prop. 47."

Criminal Aliens Being Released into US:  A report released by Homeland Security's inspector general this week exposed major flaws in the immigration system, including the practice of releasing criminal aliens onto U.S. streets when their home countries refuse to take them back.  Stephen Dinan of the Washington Times reports that this issue stems a 2001 court decision in Zadvydas v. Davis which prohibits the U.S. Immigration and Customs Enforcement's (ICE) from detaining criminals for longer than 180 days in the absence of extraordinary circumstances1 court decision.  ICE states that once 180 days of detention are up, their ability to monitor and supervise individuals is limited, allowing for criminals to return to the streets and commit new crimes.  Last year Jean Jacques, a Haitian immigrant whose home country refused to take him back after he served time for attempted murder, was released from prison and murdered Casey Chadwick within months.  Several thousand  illegal immigrants walk U.S. streets today for this reason, 35,000 from Cuba alone.  ICE says it's working with the State Department to press other countries to comply with repatriating their citizens.

Who Should Make Prison Policy?

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The saying about the inmates running the asylum used to be a joke.  

What is "violent" crime?

Here is a good example of an article that I largely agree with for its main point, even though I come from an opposite viewpoint on the underlying policy question.   The title above is the first sentence of Benjamin Levin's article in Slate, while the actual headline and subhead is "less pithy," as Doug Berman points out.  "It's time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system. -- The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment."

As with many other terms, "violent" and "non-violent" are easy enough to distinguish in their core territories (e.g. murder v. tax evasion), but there is a gray zone.

Burglary is generally classified as a "property" crime rather than a violent one.  That is where you will find the numbers tallied in the FBI's Uniform Crime Reports.  Yet in terms of its effects on victims, burglary of a home is a crime of psychological violence.  The emotional reaction to having one's inner sanctum invaded is often far worse than any tangible property loss.  Many victims make an explicit analogy to sexual assault in terms of their reaction.
A:  I don't know, but a DOJ study confirms that the Ferguson Effect  --  i.e., unhinged, ideological criticism of the police and their resulting increased caution  -- has, indeed, contributed to the rise in murder.

Our News Scan has this item, addressing the causes of the crisis-level 17% murder increase last year:

The [DOJ] study offers two explanations regarding the Ferguson Effect and how it has impacted crime, specifically murder. The first explanation asserts that increased police scrutiny in the wake of highly publicized shootings have caused law enforcement to pull back, allowing for criminals and potential murderers to roam freely, undeterred.  The second emphasizes the distrust and discontent that exists between the police and African American communities, resulting in a lack of cooperation with police investigations.*

There are at least two very important conclusions to be gleaned from this study. First, contrary to the Attorney General's and the White House's false assertions, there are indeed "data" showing the Ferguson Effect and its harmfulness (thank goodness Jim Comey was around to tell the truth).  The previously invisible data were found by DOJ itself, after a conveniently long interval to let the previous mendacious narrative sink in.

Good grief.

Second, the study, while a welcome admission of what anyone connected to reality has known for months, has a serious flaw, to wit, it suggests an alternative explanation where none actually exists. 

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Obama Administration Lowballs Crimes by Illegal Aliens:  The watchdog group Fairness and Accuracy in Reporting (FAIR) revealed that the 30,558 criminal aliens released in FY 2014 committed 13,288 additional crimes, a far higher number than the 1,423 reported by the Obama administration last July.  Caroline May of Breitbart reports that the president of FAIR, Dan Stein, criticized the Obama administration upon discovering the Immigration and Customs Enforcement (ICE) records obtained via a Freedom of Information Act (FOIA) request, for attempting to hide the true numbers by providing inaccurate information to Congress and the public "[r]ather than end dangerous politically-driven policies that have put a total of 85,000 deportable criminal aliens back into the streets in the last three years."  In FY 2014, the 30,558 released criminal aliens went on to commit an array of new crimes, including vehicular homicide, domestic violence, sexual assault, DUI, burglary and assault.

Ferguson Effect to Blame for Increase in Murder Rates:  America's largest cities have seen a 17% spike in murder rates over a one-year period, and according to a new study released by the U.S. Department of Justice, the "Ferguson Effect" could be partly to blame.  Richard A. Webster of the Times-Picayune reports that the study focuses on 56 of the nation's most populous cities that consist of more than 250,000 residents, 18 of which have seen homicides spike by more than 25% and 12 that have seen a 50% increase. The study offers two explanations regarding the Ferguson Effect and how it has impacted crime, specifically murder. The first explanation asserts that increased police scrutiny in the wake of highly publicized shootings have caused law enforcement to pull back, allowing for criminals and potential murderers to roam freely, undeterred.  The second emphasizes the distrust and discontent that exists between the police and African American communities, resulting in a lack of cooperation with police investigations.  Another possible explanation for the nationwide murder spike is the expansion of inner-city drug markets fueled by the heroin epidemic.

Petition Submitted to Block Manson Follower's Parole: 
A petition was submitted to California Gov. Jerry Brown on Monday in an effort to block the parole of a follower of Charles Manson imprisoned for killings a wealthy grocer and his wife over four decades ago.  The AP reports that Leslie Van Houten was convicted of murdering Leno and Rosemary La Bianca in 1969, one day after other "Manson family" members killed pregnant actress Sharon Tate and four others.  Debra Tate, Sharon's sister, along with a nephew and grandson of the La Biancas, turned in 140,000 signatures, taking up three boxes, at Brown's Capitol office.  Van Houten was recommended for release by a parole board in April.  The recommendation will go to Brown in August and he will have until mid-September to decide whether or not to block Van Houten's release.

Serial Killer's Fate Depends on OK Authorities:  A man currently serving a 60-year sentence for abduction could potentially face the death penalty after he was linked to several murders across both Texas and Oklahoma. KFOR reports that William Reece recently led police to the remains of Kelli Cox, whom he abducted and murdered in 1997. Police believe that there are at least five women whom have also suffered the same fate at Reece's hands, though he has only been formally charged with one murder. Texas officials have Reece in custody and have decided not to impose the death penalty if he agrees to lead them to the bodies of other victims. Oklahoma's authorities have yet to make a decision in regards to the death penalty and may still decide to impose it.

An Aggravated Assault On Death Row

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The primary reasons for punishing people who have committed serious offenses are retribution, incapacitation, deterrence, and rehabilitation.  Prison largely incapacitates, but not entirely, as this AP story reminds us.

Officials say a prison guard is recovering after he was attacked by a condemned inmate on California's death row.

They say 27-year-old Jesse Manzo assaulted the San Quentin State Prison correctional officer Thursday evening as he was being escorted back to his cell after taking a shower.

Manzo slipped his wrist out of an open handcuff and used the handcuff to hit the officer several times.

Officials said Friday that the officer was taken to an outside hospital for treatment of cuts including a significant facial injury.

Manzo has been on death row since 2013.

He was convicted of first-degree murder in Riverside County for the 2008 gang-related hate crime killing of Raymond Franklin.
Given that he has only been on death row three years, this is not a case where we can say he should have been executed already.  Even so, this is a reminder that he will be a danger from now until he is executed.  If the repeal initiative passes, he will be a danger from now until he dies of other causes, which may be a very long time.
Many astute writers about criminal justice pride themselves on analysis of data.  This is fine (as long as the data aren't intentionally skewed to omit inconvenient facts). Numbers can tell us a lot  --  for example, that shootings of police officers are markedly up this year, that murder is spiking in dozens of cities, and that heroin trafficking and related overdose deaths have reached epidemic levels.

The other side of the coin is that "data," even when considered honestly, can be used to create a miles-deep fog of what academics tell us is a "nuanced" and "careful" analysis.  Such analysis, we are lectured, is in contrast to the screeching of wahoos, cowboys and assorted brickheads who, in their Trailer Park way, have become alarmed about crime and think that punishment and incapacitation are warranted.

Every now and again, it's useful to clear away the academic fog to recall what it's being used to obscure.  This is one such story, taken not from the annals of death penalty arguments, buy merely from the inner section of yesterday's Washington Post.  The whole mind-bending article about a random savage murder is a revelation, but this is the paragraph that caught my eye (emphasis added):

[P]olice called to the scene discovered William Bennett's body, but [defendants] Roberts and Bowman had moved Cynthia Bennett, then 55, behind a fence and she lay unconscious for 45 minutes before she was spotted. Howard David Reines, a trauma surgeon at Inova Fairfax Hospital, testified in 2011 that Cynthia Bennett suffered cuts and broken bones in her face and around her eyes, one ear was partially torn off, she had a severe injury to her pelvic area and she lost more than five quarts of blood through the wound in her lower body before doctors could halt the bleeding. "In 30 years, I don't think I've ever quite seen anything like it," he said.

This is the kind of stuff crime victims live with.  Good luck finding a word about it on SSRN.

There are lots of things wrong with the Trump campaign. Most recently, the Pulitzer-prize winning fact-checker Politifact analyzed Trump's warnings about rising crime.  It found them to be distortions, noting that crime has been falling for decades. Politifact rated Trump's June 7, 2016, claim that "crime is rising" to be "Pants on Fire"--their lowest rating.

Someone's pants are on fire, yes, but it's not Donald Trump's. As AEI observes, Polifact checked figures only up to the end of 2014.  That would be a year and a half ago.  Now it's true crime statistics can be slow.  But they're not that slow, as Polifact full well knew when it wrote its article.  As AEI found:

Preliminary figures for 2015 are public but curiously the fact-checker doesn't cite them -- although the data were available in January 2016, well before the post was published. The FBI's preliminary 2015 figures actually do show crime rising in most categories across the country between 2014 and 2015. Violent crime (i.e. murder, rape, robbery, aggravated assault) is up. For example, the murder rate rose 6.2% in 2015, while rape rose 9.6%.

Indeed, the 2015 increase in murder is, as the National Institutes of Justice found, "real and nearly unprecedented."

But wait.  It gets worse.

As noted briefly this morning, the U.S. Supreme Court decided a case on the Fourth Amendment exclusionary rule, Utah v. Strieff, No. 14-1373.  The Fourth Amendment exclusionary rule is the rule that an item of evidence -- regardless of how reliable it may be and much value it may have in guiding the trier of fact to the truth of the matter to be decided in the criminal case -- must be excluded if it is found that the police violated the complex rules governing search and seizures under that Amendment.

The exclusionary rule has no basis in the text of the Fourth Amendment.  It was unknown to American law at the time the Amendment was adopted and for a century thereafter.  It was unknown to the pre-Independence law of England, from which our legal tradition was derived.  The rule was created by the Supreme Court out of whole cloth in the twentieth century and the tail end of the nineteenth, a century after Amendment was adopted.  The question appears in few court decisions before that time because there obviously was no such rule, and the few defendants to raise the proposition merely got decisions stating flatly that there was no such rule.  This history is traced in CJLF's brief in Strieff, along with a rebuttal of the lone academic to advance a contrary proposition.  For an originalist, that is enough to dispose of any case where the Fourth Amendment is relied on as the sole authority for the exclusion of evidence.  There is no such legitimate rule.

However, the Supreme Court decided to the contrary in Mapp v. Ohio (1961), a decision which Justice Harlan noted in dissent was so far in excess of the limits of the Supreme Court's legitimate constitutional powers as to make the Court's voice "only a voice of power, not of reason."  In later years, varying majorities of the Court have been unwilling to overrule Mapp, but Justice Harlan's description of the rule as "so unwise in principle and so inexpedient in policy" was never far below the surface, and numerous limitations and exceptions have been devised to reduce the harsh effects of the rule in its bare form.

Today's decision in Strieff is specifically on the "attenuation" exception, but the influence of the "good faith" cases is also evident, making a clear connection between the two branches of Fourth Amendment jurisprudence.

Trust your gut

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A 50+ year-old single man living alone with 12 young girls who are rarely seen outside and don't attend school is odd.  It's odd enough to raise the eyebrows of those in the neighborhood.  And it did raise eyebrows.  Several calls were made to law enforcement over a two-year period, but nothing was done because the community sense that "something was wrong" was not enough to justify a search warrant.  Not until the police were informed that a teenage girl living in the house had given birth twice while living there was a search warrant finally obtained. 

The police searched the home of Lee Kaplan and discovered the unimaginable - the Amish teen's parents, Daniel and Savilla Stoltzfus, had supposedly "gifted" her to Kaplan a few years earlier to thank him for saving them from "financial ruin."  The Stoltzfus' are also the suspected parents of nine of the other young girls and the grandparents of the two youngest girls (who are believed to be fathered by Kaplan) living in the home.  I don't know much about the Amish community, but I do know that giving your 14-year-old daughter to a 47- year-old man is not an acceptable form of repayment.

Amish or not, "gifting" your teen daughter to a much older man is mind-boggling.  Permitting your younger daughters to live in the house with them is inconceivable.  Allowing that man to impregnate your teenage daughter is abominable. 

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AL Appeals Court Rules Death Penalty Constitutional:  An Alabama appeals court ordered a circuit court judge last week to vacate her rulings made three months ago declaring the state's capital punishment sentencing scheme unconstitutional.  Kent Fault of AL reports that Jefferson County Circuit Court Judge Tracie Todd was ordered Friday by the Alabama Court of Criminal Appeals to vacate her March 3 order that barred the imposition of the death penalty in the cases of four inmates, who filed motions arguing that the state's death penalty sentencing law was unconstitutional based on the U.S. Supreme Courts January ruling striking down Florida's death sentencing system.  Florida's death penalty law was struck down because justices ruled that judges, rather than juries, had too much power over the decision to impose a death sentence; however, Alabama's law requires a jury to unanimously agree beyond a reasonable doubt that at least one aggravating circumstance exists.  Ultimately, the Court of Criminal Appeals found "Alabama's capital-sentencing scheme is constitutional under (U.S. Supreme Court rulings) Apprendi, Ring, and Hurst and the circuit court (Todd) erred in holding otherwise." 

Several Dead, Injured in Chicago Weekend Shootings:  Over Father's Day weekend in Chicago, 13 people were fatally shot and at lest 42 others were wounded, including a three-year-old boy who was shot while sitting in his car seat.  Alexandra Chachkevitch of the Chicago Tribune reports that in shootings between 8:30 a.m. Saturday and 4:30 a.m. Sunday alone, there were at least 28 people injured and three fatalities, the equivalent of someone shot every 43 minutes.  There have been approximately 1,780 people shot across the city so far this year.

Court Halts TX Man's Execution:  The Texas Court of Criminal Appeals stayed the upcoming execution of a Texas man last week, who was condemned for killing his two-year-old daughter in 2002.  Johnathan Silver of the Texas Tribune reports that the case of Robert Roberson, who was scheduled to be put to death on June 21, was sent back to trial court Thursday after his attorneys argued that his conviction was based on junk science and he didn't get a fair trial because mental health experts were not permitted to testify that Roberson suffers from mental lapses due to a brain injury.  Roberson is on death row for killing his toddler, Nikki, who experts testified sustained injuries consistent with signs of shaking, bruising and blunt force trauma.  Roberson claims Nikki died after falling from her crib, but other witnesses testified having seen Roberson shake and spank Nikki when she wouldn't stop crying.  The Anderson County District Attorney's office stands behind the evidence against Roberson and his conviction.

Man Charged After 12 Girls Found in his Home:  A Pennsylvania man faces several charges, including sexual assault, after police discovered him living with 12 girls, one of whom is an 18-year-old that he has fathered two children with.  Lorenzo Farrigno and David Shortell of CNN report that a tip from a neighbor led authorities Thursday to the home of Lee Kaplan, 51, who had 12 girls living with him that ranged in age from six months to 18 years.  The teenage girl who was the mother of Kaplan's two children, the first of which was conceived when she was 14, was "gifted" to Kaplan by her parents, Daniel and Savilla Stoltzfus, for helping them out of financial difficulties.  The couple claims to be the parents of all 10 girls found in Kaplan's home and the grandparents of the other two.  Kaplan is charged with statutory sexual assault, corruption of minors, aggravated indecent assault, indecent assault and unlawful contact with a minor.  The Stoltzfuses both face charges of endangering the welfare of a child, while Daniel faces additional charges of criminal conspiracy and statutory sexual assault.

Obama's Ministry of Information

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How many thousands of times have we been told by criminal justice "reformers" that we should rely on "data-driven" policy and "evidence-based" determinations?  And that troglodytes (like posters on this blog) instead rely on nativist emotion?

Largely, the insistence on data and evidence, which sounds unarguable in the abstract, is simply a dodge  --  a tactic of delay and evasion to make us doubt what we've been learning from one source after the next for months (for example, that the police have become cautious to the point of danger, or that the spike in murder is a nationwide problem).

Sometimes, though, the insistence on "data" simply means an insistence on scrubbed data.  Evidence adverse to the political agenda du jour (in Obama's case, whitewashing Jihad) literally gets blotted out.  Hence this story from the Minister of Information Attorney General:

The Department of Justice is scrubbing references of radical Islamic beliefs from the transcripts of calls Orlando terrorist Omar Mateen made to police during his massacre, Attorney General Loretta Lynch said Sunday.

A partial transcript of the conversations between authorities and Mateen, who killed 49 and wounded 53 in the June 12 attack at a Florida gay nightclub, is set to be released on Monday. But Lynch, who appeared on numerous Sunday talk shows, said the transcripts will not include Mateen's oath of loyalty to ISIS or any other religious justification for the attack.

"What we're not going to do is further proclaim this man's pledges of allegiance to terrorist groups, and further his propaganda," Lynch told NBC. "We are not going to hear him make his assertions of allegiance [to the Islamic State]."
The U.S. Supreme Court has reversed a decision of the Utah Supreme Court suppressing evidence from a stop conducted in good faith by a police officer.  Utah v. Strieff, No. 14-1373, was decided 5-3.

On a quick scan, it does not appear to be the sweeping decision I was hoping for, but a win's a win.

Update:  A follow-up post is here.  CJLF's press release is here.
The U.S. Supreme Court decided two cases this morning involving the reach of federal law under the Commerce Clauses of the Constitution.

Taylor v. United States, No. 14-6166, deals with one of the broadest laws for extending federal criminal jurisdiction to seemingly local cases, the Hobbs Act.  Any robbery affecting interstate commerce is within federal jurisdiction, and given the post-1937 definition of interstate commerce, that is a very broad sweep.  In today's case, any robbery of drug dealers can be a federal offense.

RJR Nabisco v. European Community, No. 15-138, involves civil suits under the Racketeer Influenced and Corrupt Organizations Act.  The Court puts some limits on this much-misused procedure, blocking civil RICO suits where the acts are all outside the United States.

News Scan

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Parolee Attempts to Kill CA Civil Sergeant:  A man accused of attempting to kill a Yuba County sheriff's civil sergeant last week is a parolee who remained free despite several violations and disciplinary issues, and also had a history of assaulting police officers.  Monica Vaughan of the Appeal-Democrat reports that Joseph Hazen, 38, assaulted the sergeant unprovoked on June 6 while the sergeant was serving civil papers in a multi-unit home.  Hazen, who was not the subject of the papers, stuck the sergeant with a metal pipe, knocking him out and inflicting a severe head laceration.  Hazen has only been in California for a year, first coming to Yuba County in June 2015 after the state agreed to have him transferred from Wisconsin so he could live with his mother while on parole.  Two months after arriving, parole officers recommended Hazen's parole be revoked after numerous violations.  When Wisconsin refused to take him back, he was released from custody in October and given permission to continue living in Yuba County.  Hazen has pleaded not guilty to the near-fatal attack on the civil sergeant.

Jury to Decide on Death Penalty for 2 OK Men:  A jury heard argument Thursday urging a death sentence for two Oklahoma men who murdered six people attending a party in November 2009.  Seth A. Richardson of the Reno Gazette-Journal reports that Denny Edward Phillips and Russel Lee Hogshooter, both 38, were convicted Monday in the deaths of six people, including two pregnant women, during a home robbery nearly seven years ago.  Two other men who participated in the crime, David Allen Tyner, 34, and Jonathan Allen Cochran, 37, were convicted of six life sentences and 25 years as part of a deal, respectively.  Both testified against Phillips and Hogshooter, asserting that Phillips gave orders via cellphone and Hogshooter tortured one of the victims, a 22-year-old woman who was seven and half months pregnant, before shooting her in the head.  Both Phillips and Hogshooter were found guilty on six counts of first-degree murder and one count of conspiracy to commit murder, each receiving a sentence of 35 years for the conspiracy charge.  Jurors will decide next whether the two men receive life, life without parole or death in the first-degree murder charges.

Illegal Families Surge Across Border, Breaking 2015 Records:  Homeland Security statistics released Friday reveal that the number of illegal immigrant families crossing the southwest border has already topped all of 2015.  Stephen Dinan of the Washington Times reports that last month, 6,788 people traveling as families were apprehended at the border, a more than 20% spike over April and putting the total for the first eight months of the fiscal year at almost 45,000.  While the total thus far into the year has not surpassed the exploding surge that occurred in 2014, it has already beat the 2015 yearlong total of fewer than 40,000 illegal immigrants caught.  Several justice officials blame the Obama administration's lax enforcement policies that have enticed more people to migrate to the U.S., with some going as far as abducting children in order to appear as a family unit and take advantage of the policies. 

Today's SCOTUS Cases

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Today the U.S. Supreme Court issued decisions in three civil cases and no criminal cases.  However, all three of the civil cases have some interesting and potentially relevant aspects.

News Scan

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CA Man to Face the Death Penalty:  A young man out on probation accused of murdering an elderly woman and raping another in a home invasion Sunday night near San Diego will face the death penalty.  Maria Arcega-Dunn of Fox 5 reports that Eduardo Torres, 20, broke into the Del Cerro home with Ut Nguyen, 74, a 56-year-old man and a woman in her 50s inside.  After the man managed to escape, Torres held the women hostage at knifepoint.  He then raped the woman in her 50s while stabbing Nguyen, who died of her injuries.  Torres faces charges of burglary, torture, rape, and murder, and could receive a death sentence if convicted.

ISIS Working to Send Operatives to the West, Says CIA Chief:  CIA Director John Brennan is speaking to Congress Thursday to inform that Islamic State (ISIS) militants are training and attempting to send operatives to launch attacks on the West.  Deb Riechmann of the AP reports that Brennan says ISIS is likely working to smuggle operatives into Western countries, either among the refugee flow or through other legitimate means of travel.  He notes that the terror group is also calling for followers to carry out "lone wolf" attacks in their home countries.  Although the U.S.-led coalition has made progress curtailing the group both financially and on the battlefield, "our efforts have not reduced the group's terrorism capability and global reach," says Brennan.

NV Prosecutors Seek Death Penalty Against Liquor Store Killers:  The death penalty will be sought against two of the three men accused of gunning down a liquor store clerk in Nevada's southwest valley two months ago.  David Ferrara of the Las Vegas Review-Journal reports that Lee "Dominic" Sykes, 21, and Ray Charles Brown, 24, shot and killed Matthew Christensen, 24, during a robbery on April 20.  Brown, a gang member, has been identified as the defendant who fired the fatal shot.  Sykes and Brown are charged with murder, robbery with a deadly weapon, first-degree kidnapping, burglary while in possession of a firearm, coercion with a deadly weapon, conspiracy to commit robbery and assault with a deadly weapon.  Brown also faces one count each of false imprisonment by body shield and child abuse, neglect or endangerment for using a child to shield himself as an armed SWAT team confronted him.  Sykes' brother, Lee "Murry" Sykes, 22, also faces charges in the fatal robbery but is not facing the death penalty because he was unarmed during the incident and lacks a violent past.

News Scan

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DE High Court to hear Death Penalty Arguments:  After a months-long debate, arguments over the constitutionality of Delaware's death penalty will be heard Wednesday by the state Supreme Court.  Matt Bittle of the Delaware State News reports that in Rauf v. State of Delaware, the Public Defender's Officer argues that the state's death penalty statute contradicts the right to a jury trial, while the Department of Justice contends that the law does not violate the U.S. Constitution.  Delaware's capital punishment law has some similarities to Florida's, which the U.S. Supreme Court ruled was unconstitutional in January because it allows the judge to issue a death sentence.  If the court rules that similar portion of Delaware's law unconstitutional, it may not strike down the death penalty entirely; however, if the justices find the law does not comply with the high court's January ruling, capital punishment in the state would be eliminated, at least temporarily, until the legislature adopts a revised  death penalty law.

CA Probationer Almost Hits Cop, Firefighters with Car:  A felony probationer suspected of heroin overdose nearly ran over a Redding police officer and several firefighters with his car last week, before smashing into a parked vehicle and leading the police on an 18-mile chase that ended when he ran out of gas.  Joe Szydlowski of the Redding Record Searchlight reports that police and firefighters responded to a call of a person, Michael Anthony Carter, 25, reportedly overdosing on heroin.  Carter was on probation in a 2013 attempted kidnapping case and was arrested on suspicion of heroin possession and violating his probation just one week before the high-speed chase.  The car that Carter hit during the incident belonged to anti-crime activist Anje Watson, who referenced Proposition 47 and AB 109 when she "thanked" Gov. Jerry Brown and state judges for "the New California."  After surrendering, Carter was arrested on suspicion of felony assault on a peace officer, felony evasion, diving while under the influence, hit and run, possession of heroin, resisting arrest and probation violation.

Judge Upholds Death Penalty for PA Man's Retrial:  A federal judge upheld a District Attorney's authority to seek the death penalty in the upcoming retrial of a Pennsylvania man who was convicted of murdering a young woman over a decade ago.  Phil Ray of the Altoona Mirror reports that last week, U.S. District Judge Kim R. Gibson refused to issue a certificate of appealability to Paul Aaron Ross, convicted of first-degree murder in the 2004 killing of 26-year-old Tina Miller.  In 2011, a retrial was ordered for Ross by the state Superior Court, after which Blair County District Attorney Richard A. Consiglio filed notice that he would seek the death penalty for Ross.  Ross' attorney argued that, because the jury at his 2005 trial did not render a death sentence, seeking the death penalty in his second trial would violate his constitutional right against double jeopardy as he was essentially "acquitted" of a death sentence.  However, another judge who reviewed the request last month held that court decisions permitting the death penalty against Ross at his second trial were "not unreasonable" and cannot be barred. 

Russian Government Hacks DNC

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Ellen Nakashima reports for the WaPo:

Russian government hackers penetrated the computer network of the Democratic National Committee and gained access to the entire database of opposition research on GOP presidential candidate Donald Trump, according to committee officials and security experts who responded to the breach.

The intruders so thoroughly compromised the DNC's system that they also were able to read all email and chat traffic, said DNC officials and the security experts.
Hacking is a federal crime, but I doubt the feds are going to prosecute the government of Russia.
Frank Newport reports for Gallup:

Americans' confidence in the police has edged back up this year after dropping last year to its lowest point in 22 years. Currently, 56% of Americans have "a great deal" or "quite a lot" of confidence in the police, four percentage points higher than in 2015. Confidence is essentially back to where it was before a series of highly publicized incidents involving white police officers and young black men in several communities across the country.

News Scan

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SC Church Shooter will Face Jury:  Charleston church shooter Dylann Roof's upcoming federal death penalty trial will not be decided solely by a judge.  John Monk of the Herald reports that U.S. Judge Richard Gergel ruled Monday that Roof, 22, an avowed white supremacist facing several charges in the murders of nine African-American churchgoers last June, must be tried by a jury, rejecting Roof's request last week to waive his right to a jury trial.  Roof's trial is set to begin Nov. 7, beginning with jury selection.  Opening arguments will commence once the jury is selected, likely later in the month.  He is also scheduled to be tried in state court, set to begin in late January.  He faces the death penalty at both trials.  Friday marks one year since Roof gunned down the nine black parishioners during a Bible study at Charleston's Emanuel AME Church.

AR Murderer Escapes Prison:  A man convicted of murdering a teenager four years ago escaped from an Arkansas prison Monday by walking away from a work crew.  Kelly P. Kissel of the AP reports that Lloyd Jones, 40, was discovered missing by guards around noon at the East Arkansas Unit at Brickeys, a 24-year-old maximum-security prison that has work programs in which inmates perform work in the agricultural fields outside the prison walls.  Jones, who is a registered sex offender after a 2001 rape conviction, met Angela Allen, 16, online in 2012 and picked her up for a rendezvous.  After missing for a week, her body was discovered in a plastic barrel on Jones' brother's property, and an autopsy determined that she had been strangled to death.  Jones was sentenced to 60 years for Allen's murder, plus 20 years on two child pornography charges and 10 years for one child pornography charge and abuse of a corpse.

Man Sentenced for Shipping Metals to Iran for Nukes:  A CEO was sentenced to prison Tuesday after pleading guilty to one count of conspiring to export a specialty metal from the U.S. to Iran to be used in nuclear weapons.  Maria Biery of the Washington Examiner reports that Erdal Kuyumcu, CEO of Global Metallurgy LLC based in New York, will serve 20 years and pay a $1 million fine for attempting to export a metallic powder composed of cobalt and nickel -- used to coat gas turbine components such as turbine blades, aerospace missiles and nuclear applications -- to Iran.  Kuyumcu attempted to ship over 1,000 pounds of the substance to Iran by first having it flown to Turkey, hoping to avoid detection.  His action violated the International Emergency Economic Powers Act.
Sometimes dead men do tell tales.

The Sixth Amendment guarantees the defendant in a criminal case "the right ... to be confronted with the witnesses against him ...."  What if the witness is dead?  That generally means his statements are inadmissible in evidence, but there are a few exceptions. 

In Giles v. California (2008), the U.S. Supreme Court disallowed an overly broad rule of "forfeiture by wrongdoing," where a finding by the judge that the defendant had committed the murder for which he was on trial was enough, by itself, to allow the statement of the victim.  However, the high court acknowledged an exception going back to 1666 for statements of a witness whom the defendant has wrongfully made unavailable for the purpose of preventing his testimony.  That is, the prosecution must make "a showing that the defendant intended to prevent a witness from testifying."

Yesterday, Adam Wagner had this story in the Wilmington, NC Star-News:
Richard Berman has this op-ed in the Washington Times.  He begins with the proposition that an inflated minimum wage will cause some businesses to cut back on employees and cause others to move out of the District.

The associated reduced job opportunities will only exacerbate Washington's 45 percent unemployment rate among 16- to 24-year-olds without a high school diploma. (In some neighborhoods east of the Anacostia River, the most recently available data shows overall unemployment for 16- to 24-year-olds approaching 60 percent.)

The societal implications of so many young men out of work are broader than those associated with just losing out on a paycheck. As Voltaire explained, "Work keeps at bay three great evils: boredom, vice, and need." And vice is a pressing concern at the moment for policymakers and residents contending with a dramatic spike in violent crime.

Hanson on Orlando

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If Donald Trump seriously wants to surround himself with "the best people," by which I think he means people generally aligned with his viewpoint but who are serious thinkers and learned in their fields, he might start with Victor Davis Hanson.  Hanson has this article in the City Journal.

Once again, as in the case of the Tsarnaevs and San Bernardino murderers, the shooter and his associations were on federal authorities' radar--and again to no avail. Apparently, dozens of Americans must be massacred every so often so that the rest of us can avoid the politically incorrect charge of being "Islamophobic." At some point, intelligence authorities will have to take seriously American-born Muslims who consume ISIS propaganda and espouse radical Islamic hatred.

Still more monotonous themes: as in the case of Major Hasan (the Fort Hood jihadist), the Tsarnaev clan (Boston Marathon), and Syed Rizwan Farook (San Bernardino), there is something deeply wrong with American immigration policy and the attitude of us, the lax host, to newcomers. In too many deadly cases, a generation of Muslims goes to great lengths to reach the United States only to raise an American-born or naturalized ungracious and unappreciative generation that apparently grows to hate the bounty and freedom of America to such a degree as to blow up, shoot, and maim innocent Americans. Immigration to the U.S., and citizenship itself, should be seen, again, as a privilege, not a right--and assimilation and integration, not multicultural separatism and ethnic and religious chauvinism, should be the goal of the host. We need not single out Muslims in terms of restricting immigration, but we should take a six-month timeout on all would-be immigrants from countries in the Middle East deemed war zones--Afghanistan, Iraq, Iran, Lebanon, Libya, Palestine, Pakistan, Syria, and Yemen--not only for our own immediate security but also to send a general message that entrance into the U.S. is a rare and prized opportunity, not simply a cheap and pro forma entitlement.
California Gov. Jerry Brown is doing violence to the parole system, says John Phillips of the OC Register.

Did you know that assault with a deadly weapon isn't a violent crime? How about injuring a police officer? Brutal child abuse or elder abuse? Or even killing someone?

If California Gov. Jerry Brown gets his way, I guess we will have to redefine the word "violent" in the dictionary, because thousands of people convicted of those crimes, which he calls "nonviolent," will be eligible for parole.

Brown is selling an initiative, which will likely be appearing on your November ballot, as a smart way of reducing the state's prison population by granting early release to these allegedly "nonviolent" offenders.

CJLF analyzed the initiative's verbiage, after which we estimated that, if passed, about 42,000 "nonviolent" inmates would become eligible for release.

Brown is once again "putting politics ahead of public safety" and "purposely pulling a bait-and-switch on voters to trick us into supporting something that will wreck" any remaining semblance of public safety that the state still has.  Let's hope the majority don't fall for it.

Jennifer Doleac, a visiting fellow at the Brookings Institution's Hamilton Project, has this post with the above title on Brookings' site.

Life in prison is meant to be difficult. But it doesn't always get better once you're out. Re-entering offenders often have a tough time finding employment, even when they are motivated and able to work. But "ban the box" - a popular policy aimed at helping ex-offenders find jobs - doesn't help many ex-offenders, and actually decreases employment for black and Hispanic men who don't have criminal records. This is a classic case of unintended consequences. We should repeal "ban the box" and focus on better alternatives.

News Scan

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SF Battles Auto Break-In Epidemic:  Auto glass businesses are booming in San Francisco, one of which is seeing an average of 12 motorists a day come in to replace windows broken by thieves.  Paul Elias of the AP reports that with nearly 26,500 reported auto burglaries, San Francisco has become the city with the most "smash-and-grabs" per capita of any major city in the U.S.  Heightening concerns is the fact that police say arrests are made in a mere 2% of reported cases.  A "flashpoint in the debate" is Proposition 47, the voter-approved measure enacted in 2014 that reduced some crimes from felonies to misdemeanors, including theft.  Three years before Prop. 47's implementation, in 2011, there were 10,369 reported burglaries; in 2014, that number nearly doubled to 19,871.  Former Police Chief Greg Suhr, in a letter to all officers last month, pointed to repeat offenders as a driving force behind the surge.  The city's police department says it needs more officers to effectively combat this increasing problem.

Judge Rules Against FL Death Penalty Law:  A Florida circuit judge has ruled that the state's death penalty sentencing law is unconstitutional because it doesn't require the jury to be unanimous for capital punishment to be imposed, marking the second time in recent weeks that a circuit judge has ruled against the state's new law.  Dara Kam of the Jacksonville Daily Record reports that Hillsborough County Circuit Judge Samantha Ward sided last week with convicted murderer Michael Keetley, agreeing with his lawyers that the new law "runs afoul" of the U.S. Supreme Court decision stemming from Hurst v. Florida.  Under the state's new law, which was crafted last year after the Supreme Court ruled that the old one gave judges too much power, juries must find at least one aggravating factor to exist in order for a defendant to be eligible for the death penalty, and at least 10 jurors, rather than 12, must agree in order to render a death sentence.  Prosecutors argue that finding an aggravating circumstance unanimously and beyond a reasonable doubt is sufficient and in accordance with a previous Supreme Court decision, Ring v. Arizona.  At some point, the Florida Supreme Court will make a decision on the issue.

Miranda at 50

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Fifty years ago today, the United States Supreme Court handed down the famous or infamous (depending on your point of view) decision in Miranda v. Arizona.  The immediate result of the decision in the lead case was that the conviction of a rapist was vacated and the case sent back for retrial -- meaning the victim had to endure testimony and cross-examination again -- even though Miranda's confession had been examined and held to be voluntary under the totality of the circumstances.  Fortunately, Miranda was convicted on retrial without the confession.  Unfortunately, he was paroled after serving only a fraction of his sentence.  He was killed in a bar fight in Phoenix in 1976.

Justice White, in dissent, noted the obvious truth.  "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment." 

In Dickerson v. United States (2000), the Supreme Court made no attempt to defend Miranda's indefensible fiat as an original matter.  "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."

By the decision's own terms, though, the regime it lays down is not the last word:

Reactions to the Orlando Massacre

All of us view the world through our own lenses, and those lenses are often polarized.  Was the terrible shooting in the Orlando nightclub

(a) An ISIS-inspired act of terrorism against the United States;
(b) A homophobic hate crime;
(c) The act of a mentally unbalanced person;
(d) Committed with a weapon that it is difficult to see why any law-abiding civilian has a legitimate need to own; or
(e) All of the above?

News Scan

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Five Probationers Arrested this Week in CA City:  Murrieta, Calif., police arrested five probationers this week in two separate traffic stops, Trevor Montgomery of My Valley News reports.  On Monday, Sean Williams McConnell, 25, Ivan Escareno, 36, and another person were arrested and a search of the vehicle they were in yielded heroin, methamphetamine and narcotics-related paraphernalia. as well as 39 pairs of new, designer glasses and sunglasses with the sales tags still attached that officers believed were stolen.  McConnell was found to be on formal probation for robbery and Escareno was out on Post Release Community Supervision (PRCS) under AB 109 for possession of stolen property.  Both had extensive criminal histories. Murrieta officers made three more arrests around midnight on Wednesday.  All arrestees were on probation with lengthy criminal histories, and found in possession of heroin, concentrated cannabis, narcotics paraphernalia and pepper spray.  Janice May Riepl, 37, was on formal probation for burglary;  Mike Jason Reider, 42, was on formal probation for robbery; and Glen Shawn Ramirez, 25, was on PRCS for burglary.  "(These arrests) demonstrate the impact of [AB 109] on the citizens of Murrieta," said Murrieta Police Lieutenant Tony Conrad.

SC Church Shooter Waives Right to Jury Trial:  The man charged with gunning down nine people at a Charleston church nearly a year ago has waived his right to a jury trial, which would leave his future up to a judge.  Melanie Eversley of USA Today reports that lawyers for Dylann Roof, 22, filed a notice in U.S. District Court Thursday indicating Roof's intent, and also said that they have been informed by a lawyer for the federal government that "the government will not consent to waive a jury at either stage of this case."  Roof shot the nine black parishioners during a Bible study at the Mother Emanuel African Methodist Episcopal Church last June.  Officials say the victims were targeted because they were black.  Roof's trial is set to begin Nov. 7.  He faces the death penalty.

NC Man's Death Penalty Trial Scheduled:  The death penalty trial of a Winston-Salem, N.C., man accused of fatally shooting a woman during a robbery nearly three years ago is set to begin the three months.  Michael Hewlett of the Winston-Salem Journal reports that Anthony Vinh Nguyen, 24, is facing charges of first-degree murder, kidnapping, burglary and robbery in the 2013 death of Sheila Pace Gooden, 43, and could face the death penalty if convicted.  Nguyen and two other men -- Daniel Aaron Benson, 25, and Steven George Assimos, 24 -- broke into Gooden's house in October 2013, held her against her will and stole a flat-screen television valued at $200.  All three men are charged with the same crimes, but Nguyen is the only one facing a death sentence because he shot Gooden in the head, killing her.  His trial, which is set to begin the week of Sept. 6, will last at least six weeks.

Throw the Bums Out?

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Are American voters in a sour, anti-incumbent, throw the bums out mood?  The persistently low ratings of Congress would indicate peril for incumbents, right?

California has 53 congressional districts, and in 49 of them an incumbent was running for reelection in Tuesday's primary.  Care to guess how many incumbents finished less than first in those 49?
On May 17, the Public Safety Committees of the two houses of the California Legislature held Joint Legislative Informational Hearings on the two proposed death penalty initiatives, one to repeal and the other to reform the process.

Full videos of the two hearings are available on this site.  Hit the "Next" button a few times to get to May 17.  It's on the fourth page as of this writing.

To watch in smaller bites, the pro-reform campaign has posted individual videos of our side's witnesses on YouTube:

The Mother of All Corrections

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Not directly on topic, but too good to pass up.

Several years ago, the American Journal of Political Science published what became an oft-cited study showing a correlation between conservative political ideology and authoritarian/psychotic tendencies.  It now turns out that the authors had their codings for liberals and conservatives "exactly reversed," to quote their language.  In other words, it's the liberals who are (per the study) more likely to be authoritarian nuts.

For those of us accused of being conservative, authoritarian headcases, this was the laugh of the day.

The full story is here.

News Scan

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Mother of FL Murder Victim Wants Killers Executed:  The mother of a Florida woman who was murdered over three decades ago is determined to live to see the remaining two of the four killers executed.  Laurie K. Blandford and Melissa E. Holsman of the TC Palm report that Sally Slater's daughter, Frances Julia Slater, was 18-years old in 1982 when she was kidnapped by four men who had robbed the gas station where she was working, drove her to another location, stabbed her and then shot her in the back of the head.  The man who stabbed her, John Earl Bush, was executed in 1996 at age 38; Terry Wayne "Bo Gator" Johnson, 59, who was passed out drunk in the car and didn't participate in the murder, was sentenced to life but paroled in 2008; and the other two men, J.B. "Pig" Parker, 53, and Alfonso Cave, 57, remain on death row.  All of Cave's appeals are exhausted but Parker's aren't.  Sally Slater has been writing letters to Gov. Rick Scott asking that he order a clemency hearing for Cave so that he can be executed.  As for Parker's appeal, it could be delayed until the Florida Supreme Court decides if the new death penalty law enacted in March applies to his case.  It's also possible that a judge could rule that condemned prisoners with pending appeals be re-sentenced under the new law.  Sally says she's frustrated because too often, "murder victims and their families are forgotten."

SF Homeless Debate Intensifies after Brutal Slaying:  A brutal murder in San Francisco's Golden Gate Park last month has intensified the debate over the city's longtime homelessness problem.  Michael E. Miller of WaPo reports that two homeless men were charged Monday in the death of another homeless man, 66-year-old Stephen Williams, in what authorities believe was a display of "street justice" because the killers, Stephen Billingsley and Nikki Lee Williams, believed the victim had masturbated near children in the park.  The killing is just the latest violence highlighting the ongoing problem with San Francisco's homeless population that people say is turning the city into an "unsafe" and filthy "shanty town."  Others criticize the "very negative element of drug dealing" and note that the homeless population "get[s] the correct impression that they can do anything because there's no consequences."  Williams' May 24 murder comes less than a year after three young transients were arrested for murdering a Canadian backpacker in Golden Gate Park and a yoga instructor on a hiking trail two days later.  "We are all fed up," said editor in chief on San Francisco magazine Jon Steinberg.
The United States Supreme Court issued three decisions today, none with major implications.

In Puerto Rico v. Sanchez Valle, No. 15-108, the Court decided that the "dual sovereignty" exception to the Double Jeopardy Clause does not apply to Puerto Rico.  That is, a person who has already been prosecuted for a crime by the United States (in this case, ending in a guilty plea) cannot be prosecuted by the Commonwealth of Puerto Rico for the same crime.  The Commonwealth, unlike like a State, is a creature of the federal government, not a separate sovereign.  As decided, the case is more about Puerto Rico's status than it is about the Double Jeopardy Clause.  Justice Ginsburg, joined by Justice Thomas, concurs but would undertake a broader reexamination of dual sovereignty, another blow to the simplistic, one-dimensional model of categorizing Justices.

v. Pennsylvania, No. 15-5040, involves Ronald Castille, the District Attorney of Philadelphia who became the Chief Justice of Pennsylvania.  As DA, he signed off on his office seeking the death penalty against murderer Terrance Williams.  The Court holds that his failure to recuse himself from the case as Chief Justice when it reached the Pennsylvania Supreme Court violated the Due Process Clause.  Opinion by Justice Kennedy.  Chief Justice Roberts and Justices Thomas and Alito dissent.

Court watchers will remember that in the first few years after Justice Kagan moved to the Court from the Solicitor General's office she recused in every federal case where her office had been involved, a large number of cases.

In Dietz v. Bouldin, No. 15-458, the court holds that a "federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict."  Probably limited impact on criminal cases, but I thought it was worth noting here.

Repeat Criminal Convicted, Again

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In posts here and here, I discussed a Washington Post story detailing how repeated "second chances," all borne from the false promises of rehabilitation and redemption that underlie the sentencing reform movement, resulted in a brutal rape.  At the time of my entries, the rape had not been proved in court, and the defense lawyer indignantly and thunderously denied her client's involvement.

A jury has now found that defense counsel's story was so much baloney.  That by itself is hardly worth a new entry; made-up stories are the inventory of criminal defense.

What's worth a new entry is a reminder of how utterly preventable this rape was  --  if our system suffered less from willful and ideologically driven blindness about the criminal instincts of the defendants it's dealing with. 

News Scan

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UT Man may Face Death Penalty in Toddler's Death:  Utah prosecutors have until Friday to decide whether to seek the death penalty against a man who beat his girlfriend's two-year-old son to death last year over potty training issues.  Jessica Miller of the Salt Lake Tribune reports that Joshua Schoenenberger, 35, is facing charges of first-degree felony murder and second-degree felony child abuse in the May 2015 death of James "J.J." Sieger Jr., who died of fatal blows to his stomach after Schoenenberger picked him up, squeezed him hard and dropped him.  Schoenenberger told police that he was upset with J.J. for not listening to him and struggling with potty training.  J.J.'s mother, Jasmine Bridgeman, 24, was charged with second-degree felony obstruction of justice for lying to police about her son's death.  She pleaded guilty last month and sentence to one to 15 years in prison.  Update:  Prosecutors opt not to seek death penalty against Schoenenberger.

SC Church Shooter's Trials Set:  The federal death penalty trial has been set for later this year against the South Carolina man who fatally shot nine people at a Charleston church last June, and the state trial is scheduled to commence early next year.  Bruce Smith of the AP reports that Dylann Roof, 22, will be tried in federal court beginning November 7 on several counts, including hate crimes, for gunning down nine black parishioners who were attending a Bible study at the Emanuel AME Church in Charleston.  The federal trial will be followed by a trial at the state level, set for January 2017, where he is charged with nine counts of murder and also facing the death penalty.

Illegals Kidnapping Children to Appear as 'Family Units,' Say Feds:  A deputy assistant attorney general told a federal appeals court Tuesday that illegal immigrants are kidnapping children and bringing them across the border in order to appear as family units and take advantage of lax enforcement policies.  Stephen Dinan of the Washington Times reports that last year, federal Judge Dolly M. Gee ruled that all illegal immigrant children must be quickly processed and released from detention, along with their parents, which has enticed people to kidnap children, says Leon Fresco, the deputy assistant attorney general.  Gee's order has also led to a new spike in illegal immigration, with FY 2016 steadily heading toward setting a record for family units apprehended at the southern border.  In the next few weeks the Supreme Court will rule on the legality of the Obama administration's overall amnesty program.

Yesterday the John and Ken Show, the leading talk radio show in the L.A. area, had this segment on Gov. Jerry Brown's Jailbreak Initiative with yours truly.
The defense bar is attempting to spin the narrative about the lenient sentence given Stanford rapist Brock Turner.

The problem, it tells us, was mostly a well-meaning but white tribalist judge.  The problem decidedly was not the defense-friendly sentencing submissions made in Turner's behalf  -- or, if they were a problem, it's because they were strategically inapt and tone-deaf. That they were morally bankrupt and odious plays second fiddle in the defense view, see, e.g., here and here (if they even get a seat in the orchestra). 

Still less of a problem is defense counsel's work.  This is notwithstanding that the entire purpose of that work was to get the rapist off with a trickster acquittal  --  or, failing that, to get a non-incarceration sentence.  In the latter, the defense very nearly succeeded. Yippee!

But rather than take a victory lap for this rare, chipper outcome, the defense bar  -- politically shrewd as ever  --  smells trouble and has commenced damage control. The public might, for once, show significant interest in, and concern about, how the victim got treated in court.. Thus, while much is said about the judge, the system, white privilege, class bias, jocks, drinking, fraternities, etc., etc., next to nothing is getting said about defense counsel's treatment of the victim.

Q:  Now why would that be?
I have previously argued that Judge Aaron Persky, who imposed a six-month jail sentence on the man who grossly violated an inebriated woman, should be recalled.

I advanced this position notwithstanding the opinion of the defendant's father that all his son did was "20 minutes of action"  --  a phrase that will live in infamy if I have anything to say about it, not because it's appalling, but because it's revealing.  In 40 years of practicing law, I have never seen the defense attitude toward victims put more honestly or more succinctly. 

The court's lenient sentence, and what should become of Judge Persky, is the talk of the legal blogosphere, see, e.g., Doug Berman's entry here, and is today's lead topic in the New York Times "Room for Debate."  The NYT asked three legal scholars to chime in, and me too.  The debate presents as diverse and thoughtful a discussion as I have seen.

I have criticized the NYT more than once, and will do so again, but I thank it for seeking a conservative viewpoint and allowing me to speak my piece.
The Stanford rapist, Brock Turner, got a six month sentence for a more-disgusting-than average (if that makes any sense) attack on an inebriated woman.  As I've previously noted, once the trial rolled around, his defense lawyer went to town on the victim.  He did this in a display of vicious misogyny any normal person would find shocking.

His cross-examination was not an attempt to create reasonable doubt, none being possible about whether an unconscious person can consent to sex.  It was an attempt to punish the victim for coming forward.

There are those in my profession  --  indeed, almost certainly a majority  --  who think this kind of lawyering is permissible, if not required.  All in the for client, dontcha know.

I dissent.  Being a lawyer is not a ticket beyond the boundaries of decency.

At the same time, being a white male is not a ticket to blanket condemnation, either.

News Scan

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'Grim Sleeper' Sentenced to Death:  A jury decided Monday that the Los Angeles serial killer known as the "Grim Sleeper" should be sentenced to death for murdering nine women and a teenage girl over the span of several decades.  The AP reports that Lonnie Franklin Jr., 63, was convicted of 10 counts of first-degree murder last month for crimes dating back 30 years, which involved fatally shooting and choking women and dumping their bodies in trash bins and alleys around South Los Angeles.  The crimes were not connected to a serial killer until 2007, when Franklin came under suspicion after the cold cases were reopened.  He was dubbed the "Grim Sleeper" because of a gap in slayings between 1988 and 2002, but authorities now believe Franklin never took a break.  Evidence was introduced during the trial's penalty phase that tied Franklin to four additional murders, but he didn't face charges in those cases because prosecutors wanted to avoid delaying his trial.  Formal sentencing is set for Aug. 10.

Criminal Aliens Released to Commit Serious Crimes:  A Boston Globe report found that many illegal immigrants secretly released into New England communities by the Obama administration went on to commit serious crimes such as attempted murder and rape.  Katie McHugh of Breitbart reports that the Globe discovered that 323 criminal aliens were released into New England from 2008 to 2012, with nearly one-third of them going on to commit more crimes and a quarter facing a later conviction of a violent crime.  Nationwide, the Obama administration has released over 86,000 criminal aliens from 2013 to 2015 who committed a combined total of over 231,000 additional crimes.  The administration's next plan is to release as many as 70,000 federal prisoners.

OH Cop Killer Could Face Death Penalty:  A grand jury returned an 11-count death penalty indictment against a man who fatally shot a Columbus police officer two months ago. 10TV News reports that Lincoln Rutledge, 44, opened fire as officers approached his home in an armored vehicle to serve a felony arrest warrant on April 10, striking Officer Steve Smith in the head.  Smith succumbed to his injuries two days later.  Rutledge faces charges that include two counts of aggravated murder, four counts of attempted murder, four felonious assault charges and one count of aggravated arson.  He is set to be arraigned on June 10.
I would say that criminal defense reached a new low when part of the sentencing package for a convicted rapist characterized his unusually demeaning and ugly sexual assault as "20 minutes of action."

The problem is that it's nether new nor a low.  It is, however, a rare public window into what goes on with the "client-uber-alles" mentality of criminal defense.

Let's just say it out loud:  To the defense side, victims are human garbage.  Their rights count for zip.  Their humanity counts for zip.  And the legal profession tolerates it.

But we don't have to tolerate the judge, Aaron Persky, who then cheerfully gave the rapist  --  a college athlete who could easily have overpowered the victim even if she had been conscious, which she was not  --  six months in the county jail (of which he is likely to serve just three).  The voters can get Judge Persky removed.

It should not take a politically incorrect crime like rape to awaken us to how degraded legal "ethics" have become, and how much judges need reining in with mandatory minimum sentencing statutes.  But we need to start where starting is possible, and we need to start now.
Last winter, California Governor Jerry Brown wanted to put on the ballot a new initiative to facilitate large-scale releases of felons from prison.  He had a problem, though, in that it was too late in the initiative cycle to begin an initiative from scratch and get it on the November 2016 ballot.

Gov. Brown's solution was to strike a deal with proponents of an unrelated juvenile justice initiative that had already gone through the early stages of the process.  Can he do that?  The bill allowing amendment of pending initiatives is only two years old, and there are unanswered questions.  Today the California Supreme Court answered one of the questions and cleared the way for the Jailbreak Initiative to be put on the ballot this fall.

The statute at issue, California Elections Code § 9002(b), requires that the amendments be "reasonably germane" to the original measure.  Does that phrase stretch far enough to take an initiative that is entirely about juvenile justice and graft on a measure that largely dismantles the determinate sentencing reforms of 40 years ago, which apply only to convictions in adult court?

Stool Pigeon...

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Peter Holley reports for the Washington Post:

A possible murder witness is talking.

The question is whether anyone should listen.

His name is Bud, and he's an African gray parrot in Ensley Township, Mich., with a filthy mouth, according to NBC affiliate WOOD-TV.

His latest phrase - the one he won't stop shouting at the top of his lungs mimicking his owner's voice - is a chilling one: "Don't f--ing shoot!"

The bird's antics might be laughed off, but it were not for the fact that Bud's owner, 45-year-old Martin Duram, was fatally shot at his home in May 2015, according to ABC affiliate WABC.  His body was found near his wife, Glenna, who had suffered a gunshot wound to her head but is alive.  Although police initially assumed Glenna Duram was a victim of the shooting, police reports obtained by WOOD-TV reveal that she is now a suspect in the slaying.

Law and Order writers...are you reading this???

There are times when a person must admit that he was just plain wrong, apologize, and move on.  Most of us learn this when our age is in single digits.  Does Donald Trump know it at just shy of 70?

We have the test case before us.  His attack on Judge Gonzalo Curiel is hands-down the stupidest thing he has said to date.  "Indefensible" hardly does it justice.  Paul Gigot has this editorial in the WSJ.

Donald Trump keeps giving his political opponents ammunition, most recently with his continuing attacks on Judge Gonzalo Curiel, who is presiding over lawsuits against Trump University. But it's important to distinguish between what is merely obnoxious and the truly odious in his remarks.

News Scan

Man Fatally Hits Cop with Vehicle Following Shooting:  A mentally ill man was charged with first-degree murder on Sunday for fatally striking a Memphis police officer with a stolen car after shooting three people.  Fox News reports that Justin Welch, 21, was previously committed in December 2013, two and a half years prior to Saturday's crime spree that left Officer Verdell Smith, 46, an 18-year veteran of the police force, dead.  Two people shot by Welch are in critical condition, while the other victim's condition is unknown.  Welch faces additional charges of vehicular homicide, evading arrest, theft and reckless driving.  His motive for the crime spree has not yet been determined.

Obama Admin Failing to Screen, Track Foreign Immigrants:  A congressional member of the House Judiciary Committee says that the Obama administration failed to properly screen and track nearly 10 million foreign immigrants admitted to the U.S. on visas last year, citing the "tremendous pressure" on federal authorities to green light visas despite being unable to fully vet applicants.  Adam Kredo of the Free Beacon reports that according to Rep. Randy Forbes (R-Va.), the risk of infiltration and fraud in the visa program remain at record highs and the Obama administration is admitting immigrants in record numbers.  The expediency of admission has allowed terrorists to gain legal entry into the country, says Forbes.  In response, he has proposed legislation that would:  mandate the visa applications from countries with known terrorism ties to receive extra scrutiny from federal authorities, require authorities to review the social media accounts of visa applications, boost security cooperation between agents and deny entry to any foreigner who fails to complete an application.

Federal Bill Introduced to Restore Voting Rights of Convicts:  A bill has been introduced in the U.S. House of Representatives that would amend the National Voter Registration Act of 1993 and restore the voting rights of convicted felons.  Joe Schoffstall of the Free Beacon reports that Rep. Alan Grayson (D.-Fla.) introduced the No One Can Take Your Right to Vote Act of 2016 arguing that felons deserve a second chance and are entitled to equal protection under the law.  An election integrity group, the Public Interest Legal Foundation, countered Grayson's claim, and argued that the Constitution's Fourteenth Amendment allows states to remove voting rights of people convicted of crimes.  The group also cited a recent study that found seven out of 10 felons register as Democrats, concluding that, "Democrats would benefit from additional ex-felon participation."  Virginia Gov. Terry McAuliffe recently stirred controversy when he announced an executive order to restore the voting rights of 206,000 felons, in what many criticized as "political opportunism" ahead of the 2016 election.
I blogged yesterday about the intentionally deceptive, callous and cruel cross-examination of a rape victim by the rapist's defense attorney, Michael Armstrong. Readers can see for themselves, from the victim's letter, just how aggressively disgusting defense counsel became with her.

The cookie-cutter, From-on-High excuse for this kind of stuff is that, look, we have an adversarial system, what do you want the lawyer to do?

I have answered that question many times.  First, I want each lawyer in the courtroom to conduct himself as a partisan of the truth. That would require (1) caring about it, (2) making at least a minimal effort to find out what it is before you start thundering, and (3) at the least, not intentionally leading the judge and jury in a different direction.

Second, I would like the lawyers to understand that civic life imposes basic obligations of decency and citizenship that come before making the client happy (and therefore more willing to pay, which is what a lot of the self-important lawyer posing is actually about).

If this is too much to ask, then the problems with the defense bar, and the culture that (in more ways than one) licenses it are more poisonous than I thought.

To see just how poisonous, read some of the defense submissions at sentencing.
The United States Supreme Court this morning took up two capital cases from Texas, Moore v. Texas, No. 15-797, and Buck v. Stephens, No. 15-8049.

Moore has stated two "questions presented" in his petition.  One has to do with the definition of intellectual disability (formerly called mental retardation) for the purpose of the categorical exemption from capital punishment established in Atkins v. Virginia.  The second is the infamous "Lackey claim," that length of time on death row alone is enough reason to vacate an otherwise valid sentence, even when the state has been fighting tooth and nail against delay and the defendant has been causing it.  The latter has been turned down by the high court again and again, never getting more than two votes to take it up.  The order granting certiorari does not limit the grant to question 1, as I would have expected, but it is possible that this is an oversight and the court will amend the grant to exclude the Lackey claimUpdate:  The orders list and the docket now indicate that the grant of certiorari is limited to Question 1, the Atkins claim, turning down the Lackey claim.

In Buck, the defendant's own expert testified at some length that the defendant would not be dangerous in a prison environment, an opinion highly favorable to the defense on a critical question.  In the course of the testimony, the expert testified regarding the factors that correlate with rates of violent crime.  In response to a question from defense counsel, the expert said, "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the Criminal Justice System." 

This is not a claim that race causes people to be violent.  It is simply a statement of an unfortunate but undeniable demographic reality.  This statement, and a brief follow-up on cross-examination, have been widely misrepresented by Buck's lawyers and the media.  The full transcript of the testimony is here.

In other action, the high court decided a procedural question involving the Prison Litigation Reform Act and "exhaustion" in Ross v. Blake.
A.  Starting in the early to mid-Sixties, and for the next 25 years or so, the country gave judges almost unlimited sentencing discretion and earnestly believed in the possibilities of rehab. The prison population was a fraction of what it is now.  Violent crime surged.  

Starting in roughly 1990, and for about the 25 years after that (up to 2015), the country reined in sentencing discretion and became skeptical about rehab.  It also adopted aggressive, pro-active policing.  The prison population ballooned to record levels.  Violent crime rates decreased by half, the largest drop over the shortest time in American history.

B.  In August 2014, after Officer Darren Wilson of Ferguson, MO, was falsely portrayed as a murderer for acting in self-defense against a 292 pound small-time thief who came at him, academia and the Left have routinely portrayed police as pigs, and the "sentencing reform" (i.e., mass sentencing reduction) movement has started to succeed, now having reduced the overall prison population for several years.

As Kent notes, violent crime is  --  guess what!  --  spiking.  No serious person any longer denies this.  But the "experts" tell us the whole thing is a big mystery, and, whatever the cause, certainly there is no relationship between A and B.  

This stance actually conveys considerable information.  It tells us a good deal about how "expert" they are, and how completely they take the rest of us for fools.
Time to bring out the elephant in the living room again.  As described by Wikipedia:

"'Elephant in the room' or 'Elephant in the living room' is an English metaphorical idiom for an obvious truth that is going unaddressed. The idiomatic expression also applies to an obvious problem or risk no one wants to discuss.

"It is based on the idea/thought that an elephant in a room would be impossible to overlook."

Lisa Marie Pane and Don Babwin have this story for Associated Press.

CHICAGO -- Violent crimes - from homicides and rapes to robberies - have been on the rise in many major U.S. cities, yet experts can't point to a single reason why and the jump isn't enough to suggest there's a trend.

Still, it is stumping law enforcement officials, who are seeking a way to combat the problem.

"It's being reported on at local levels, but in my view, it's not getting the attention at the national level it deserves," FBI Director James Comey said recently. "I don't know what the answer is, but holy cow, do we have a problem."

You have to get down to the 15th paragraph before the Ferguson Effect is even mentioned, and it is immediately followed by a dismissive comment by the lacking-a-better-explanation expert.  The ongoing efforts to dismantle the highly successful tough-on-crime movement of the past several decades -- ignoring history in order to repeat it -- is not mentioned at all.

The anti-punishment and anti-police crowds (overlapping but not equal sets) have been on a roll for several years now.  When the results that persons of sense warned would follow do follow, the likely causal connection must be ignored or dismissed.

The Defense Bar's War on Women

To my anachronistic way of thinking, rape was a serious crime even before political correctness made rapists the one kind of criminal defendant the Left declines to embrace.  (Other kinds of sex offenders are still OK with them, see, e.g., any child pornography opinion by Jack Weinstein).

But, more-or-less out of sight, the defense bar is still at work bullying rape victims who have the guts to testify.  The bullying takes the form of, among other things, gutter-level misogyny that a person of normal empathy would find hard to imagine.

The defense lawyer's cross-examination of a woman raped (outdoors, behind a dumpster, while passed out, incidentally) tells you all you need, and certainly all you want, to know about the supposed compassion of the defense bar.  It's spelled out in this (unfortunately quite long) piece, "Here Is the Powerful Letter the Stanford Rape Victim Read Aloud to Her Attacker."

And please, spare me the vapid line about, "Well gosh, Bill, you just don't appreciate how our adversarial system works."  What the rape-excusing scolds who say this pretend not to understand is that a refusal on principle to engage in grotesquely callous and cruel treatment of rape victims comes before collecting your fat fee (and it was fat indeed in this case), "justified" by the rote and self-righteous invocation of, "Hey, look, that's how the system works!"

P.S.  Still, not to worry.  The rapist, a former Stanford swimmer who did not deny the act, was sentenced to six months in jail because a longer sentence would have "a severe impact on him," according to the judge.  Thus, this case has lessons about the need for mandatory minimums in addition to those about defense work.

Sometimes you wonder how the families of murder victims restrain themselves from just going after the murderers in the courtroom, as they sit only a few feet away.  It's not surprising that Van Terry, the father of 18-year-old Shirellda Terry, yielded to temptation and lunged that at evil-to-the-core Michael Madison.  The police stopped him before he could reach Madison.  Michael Miller has a report, with video, at the WaPo.

We tell people to trust the system to work and not take things into their own hands.  Too often the system betrays them.  Ohio owes it to Mr. Terry as well as the other families to review this case within a reasonable time and, if there is no reversible error, carry out the sentence.  The cases of Timothy McVeigh and the D.C. Sniper demonstrate that a full and fair review can be carried out in five or six years from sentence to execution.

That should be the standard.  Absent any substantial claim of actual "got the wrong guy" innocence (and most capital cases have none) every capital case should reach a final conclusion -- reversal or execution -- within six years.

A Swiss Army Dagger?

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Not in California.

People v. Castillolopez, S218861, decided by the California Supreme Court yesterday:

News Scan

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OH Serial Killer headed to Death Row:  After a two-month trial, a Cleveland serial killer was sentenced to death Thursday for the rape and murders three women.  John Harper of Cleveland reports that following the recommendation of the jury, Judge Nancy R. McDonnell decided to sentence Michael Madison to the death penalty for the deaths of Shirellda Terry, 18, Shetisha Sheely, 28, and Angela Deskins, 38, who were choked and beaten to death.  Their bodies were discovered mutilated and decomposing in trash bags around Madison's apartment complex.  The family and friends of the three victims expressed relief in the judge's decision to send Madison to death row.  Executions are currently on hold in Ohio while state prison officials struggle to obtain the drugs needed to carry out lethal injection.

DC Must let Ex-guards Pack Heat, Court Rules:  A federal court ruled Thursday that four former prison guards were improperly barred from carrying concealed guns, striking down a previous stance that the 2004 federal law giving off-duty and retired law enforcement officers the right to pack heat didn't apply to them.  Fox News reports that in a 2-1 decision, the U.S. Court of Appeals for the Washington D.C. Circuit ruled in favor of the four plaintiffs, all of whom were denied concealed-carry licenses despite disclosing that they regularly received threats from inmates they once guarded.  Washington D.C.'s Department of Corrections had argued that because the four men lacked arresting authority, the 2004 Law Enforcement Officers Safety Act, which guarantees the right to carry a concealed firearm to law enforcement officials, did not apply to them.  The federal court's Thursday ruling clarifies that the LEOSA must extend to retired and off-duty corrections officers in addition to state and local and federal agents.

Smuggling Network Guided Illegals to U.S. from Terror Hotbeds:  A review of internal government documents reveal a smuggling a network that managed to sneak illegal immigrants from Middle Eastern terrorist hotbeds into the U.S.  Stephen Dinan of the Washington Times reports that the Brazilian-based network connected at least a dozen Middle Eastern men, who had family ties to terrorism, with two Mexicans who guided them to the U.S. border late last year.  Only six of the men made it all the way to the U.S. border without first being nabbed in Central America.  Once there, they crawled under a border fence in Arizona and traveled 15 miles before being apprehended.  Five of the men in that group have since been released into the U.S. after claiming asylum.  The revelation confirms fears of a pipeline that can smuggle terrorists from the Middle East into the U.S., despite the Obama administration's longtime claim that the southwest border isn't a likely route for operatives.  The name of the smuggling network is being kept confidential, as requested by law enforcement.

No Remorse for Doctored Video

Erik Wemple, who covers media issues for the WaPo, has this post on the doctored video in Katie Couric's documentary on gun rights, which Bill noted Tuesday.   Wemple notes that while Couric has apologized, director Stephanie Soechtig continues to insist she did nothing wrong.

For the record, the edit in question misportrayed an exchange between Couric and members of the Virginia Citizens Defense League. In response to a question about background checks, VCDL members are depicted in stunned silence for about eight seconds. An audiotape recorded by VCDL President Philip Van Cleave showed that Couric's inquiry fetched an immediate and quite reasonable response.
After quoting Soechtig's absurd responses in an interview, Wemple concludes, "Arrogance and disregard for people are horrible traits in someone who purports to explore one of the country's most divisive issues."

Unfortunately, Soechtig's attitude is all too common in too many people purporting to explore divisive issues.  For too many, it is perfectly okay to distort and deceive as long as you are doing it in support of the Politically Correct position.

Note that this deception has only received the attention it has because Van Cleave made his own independent recording, catching Soechtig red-handed.  If it had merely been his word as to what happened, and not this recorded proof, she probably would have gotten away with it.

News Scan

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Chicago has Deadliest May in 21 Years:  The fatal shooting of a 15-year-old Chicago boy on May 31st marked the 66th and final homicide of the month, making it the deadliest May in the city since 1995.  Alexandra Chachkevitch, Rosemary Regina Sobol and Jeremy Gorner of the Chicago Tribune report that 243 people have been killed thus far into the year, the most fatalities since 1999 when 248 were killed.  Shooting incidents have also increased for the third consecutive year, spiking over 50% this year with more 1,500 people shot.  Over Memorial Day weekend alone, 63 people were shot and an additional six were killed, while 50 people were shot, eight fatally, earlier in the month over Mother's Day weekend.  "I want to leave Chicago," said the mother of the 15-year-old victim.  "We are ready to go."

2 CA Cops Shot, Suspect Dead:  Two Fremont, Calif., police officers were injured by gunfire after a traffic stop turned into an hours-long manhunt that began on Wednesday afternoon and ended Thursday morning when the suspect was discovered dead.  Brian McBride, Julia Jacobo and Morgan Winsor of ABC News report that the manhunt began after suspect fled the scene on foot from a traffic stop where he backed his vehicle into the officer's patrol car and fired shots, injuring the first officer. A short time later, while responding to a house where the suspected gunman was reportedly located, the second officer was struck twice by gunfire. The gunman barricaded himself in the house, and officers attempted to negotiate with him for hours before lighting a defensive fire to smoke him out of the house. The gunman was found dead Thursday morning in a closet. Both officers have undergone surgery, and the second officer is in stable condition while the first remains in critical condition.

Death Penalty Sought Against NE Double Murderer:  Prosecutors are seeking the death penalty against an Omaha, Neb., man for the December slayings of his estranged girlfriend and her two-year-old daughter.  Todd Cooper of the Omaha World-Herald reports that four aggravating circumstances have been filed against Dontevous Loyd, 24, for fatally shooting Destacia Straughn, 22, and her toddler, Kenacia Amerson Straughn at Straughn's home.  Loyd also tried to kill three other women who were present at the home, but they survived.  He allegedly shouted "no witnesses" as he opened fire on the women, his motive stemming from his anger at Straughn for reporting to police that he had stolen her car.  The aggravating factors against him include:  he attempted to conceal a crime through murder, he killed multiple people, his actions posed a great risk to a number of others and he has a history of violent crime.  His trial is slated to begin in December.
Adam Liptak has this amusing article in the NYT on a panel discussion with Justices Ruth Ginsburg and Sonia Sotomayor discussing lunch at the Supreme Court.  To keep things collegial, they have an "absolute rule" against talking about cases.

They also dropped a few nuggets about their present and former colleagues' food choices.

Justice David H. Souter, who retired in 2009, would subsist on a lunch of "plain yogurt," Justice Ginsburg said, with distaste. "Just plain yogurt."
*                    *                  *
Chief Justice John G. Roberts Jr. orders a salad for lunch from the court's cafeteria, Justice Sotomayor said, while Justices Anthony M. Kennedy and Samuel A. Alito Jr. bring food from home. "And sometimes I see Sam's fare and think maybe I should eat dinner with him," she said.
Yes, definitely, Justice Sotomayor.  Have whatever Sam's having.  Can't hurt.

Liptak reports, "The court suffered a culinary loss in February with the death of Justice Antonin Scalia"  They can no longer eat the things he kills.

Update:  Andrew Hamm has more on this event at SCOTUSblog.

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CA Assembly Passes Bid to Extend Prop 47 Criminal Reclassification:  The California Assembly passed a bill Tuesday that allows felons additional time to reduce their punishments under Proposition 47.  Liam Dillon of the LA Times reports that Prop. 47, approved by voters in 2014, changed certain property and drug crimes from felonies to misdemeanors and allowed individuals previously convicted under the old rules to seek lowering their punishments.  With the latter provision ending next year, the bill introduced by Assemblywoman Shirley Weber (D-San Diego) would extend relief eligibility to felons for five more years.  Since its implementation, Prop. 47 has stirred controversy in California, with many law enforcement officials and organizations, including the California Police Chiefs Assn., believing it to be a major contributor to a rise in crime across the state.  "Prop. 47 has enough problems," said Assemblyman Travis Allen (R-Huntington Beach).  "Let's not give [felons] five more years."

La. Prohibited from Executions before 2018, Judge Rules:  Louisiana is barred from carrying out its next scheduled execution before January 2018, as per an order from a federal judge.  KATC reports that U.S. District Judge James Brady granted Attorney General Jeff Landry request for an 18-month extension on Tuesday, effectively putting the executions of Christopher Sepulvado and five other death row inmates, who are all plaintiffs in a lawsuit challenging the state's lethal injection method, on hold.  Sepulvado is on death row for fatally beating and scalding his six-year-old stepson in 1992.

WV May Bring Back Death Penalty:  West Virginia delegate Rupie Phillips will introduce a bill in next year's legislative session to bring back the death penalty, which has been abolished since 1965, Jeff Jenkins of Metro News reports. This comes just one week after Ben Hatfield, a coal executive, was shot and killed after an attempted robbery. Phillips describes Hatfield as a "friend of man and a supporter of mine," and believes that capital punishment should be reinstated for these kinds of "cowardly acts."

Fleshing Out the Trump Administration

There are five months or so until the election.  At this point, the major polls have Clinton and Trump tied.  Among registered voters, WaPo/ABC has Trump ahead by 2; for NBC, it's Clinton ahead by 3; for NYT/CBS Clinton is up by 6; and Fox has Trump up by 3. Likely voters tend to be slightly more Republican and a slightly better predictor of actual results.  Thus, for now, it's a tie.

With that as the state of play, I'm happy to join the game going on elsewhere in this town, to wit, suggesting names for Trump's VP and the Supreme Court nominees.

N,B. This is not an endorsement of Trump.  CJLF does not endorse candidates, and I personally am not at this point.  My favorites, Ted Cruz and Marco Rubio,  didn't get this far.

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