November 2016 Archives

How is Euthanizing Murderers Cruel & Unusual?

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In July, Mark Langedijk, a middle aged man in Holland, was euthanized at his request due to his addiction to alcohol. The Netherlands is one of nine countries, including Canada and parts of the U.S., which allows assisted suicide for those living their lives with an "unbearable" illness or affliction.   Tom Embury-Dennis of the Independent  reports that the Netherlands introduced euthanasia 16 years ago, and the current "euthanasia kit" available in pharmacies employs a three drug protocol to induce a painless death.  This raises the question "if the same chemicals we use to execute our worst murderers aren't cruel and unusual for an alcoholic in Holland or a cancer patient in Oregon, why are US courts wasting time and money reviewing Eighth Amendment challenges?"  The standard argument from the Anti-death penalty lobby is that capital punishment is cruel and unusual, that it's "inhumane".  Apparently this is only true for murderers who inhumanly shoot, stab or torture innocent people to death, after a trial and several appeals to confirm their guilt.  

News Scan

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Immigration Violations at an All-Time High: For the first time, Immigration violations have been identified as the majority of federally prosecuted cases. William La Juenesse from Fox News reports in this last fiscal year, 69,636, or 52% or all federally prosecuted cases in the United States were related to the violation of immigration laws. The two most common charges among these cases are illegal entrance into the country and illegal re-entry into the country following deportation, the penalty for which can be up to two years incarceration in a federal penitentiary.

North Carolina Terrorist Pleads Guilty: Justin Nojan Sullivan, 20, plead guilty this Tuesday to charges of conspiracy to commit a terrorist act in the United States. Anna Giaritelli at the Washington Examiner reports that Nojan was indicted earlier this year in connection with alleged communication with a member of the Islamic State in Syria with the intent to coordinate a terrorist attack on U.S. soil. Nojan also faces capital charges for the robbery and murder of his neighbor. Nojan admits to having committed the crime in hopes to attain the funds necessary to purchase a firearm with which to perpetrate a mass shooting.  Following a plea deal on the terrorism charges, Nojan will serve life in prison.

Charlotte Officer Cleared of Charges: It was announced that Officer Brentley Vinson, the Charlotte police officer involved in the recent shooting of Keith Lamont Scott, has been cleared of all charges regarding the shooting. According to
Two weeks ago, the U.S. Supreme Court summarily dumped a case brought by Visa, Inc. et al. because the petitioners got the court to take the case up saying it was about one issue and then relied on a different argument once they reached the merits stage.

It's not nice to bait-and-switch the nation's highest court.  Yet lawyers for a habitual criminal who blew the head off a store clerk during a robbery may get away with doing exactly that.  Capital defense lawyers are special, you see.  Rules don't apply to them.

Here is the Question Presented as drafted by lawyers for Texas murderer Bobby James Moore:

Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
See any issue there about whether the Texas standard of Ex parte Briseno ever conformed to the subsequently "outdated" standards in the first place?  Nope.  It's not there.  But today's oral argument was nearly all about that.  The Chief Justice was not pleased, but he may not have a majority.
LifeZette, a new on-line magazine, is a breath of fresh air in Washington, DC. Instead of the weary, threadbare cliches from the liberal Establishment that have been driving the conversation inside the Beltway for decades, it presents a frankly conservative perspective.  

I was grateful to be able to contribute mine this morning, "Trump Can Reverse the Deadly Spike in Violent Crime."

Flag Burning

President-elect Trump has raised the issue of criminalizing flag-burning in a tweet.  The constitutional question is closer than many might think.  In 1989, Texas v. Johnson was decided by a bare 5-4 majority.

The justices did not divide on liberal/conservative lines in that case.  "Conservative" Justice Antonin Scalia provided the fifth vote to overturn the statute.  "Liberal" Justice John Paul Stevens was in the dissent.

Should the question be considered closed as a matter of respect for precedent (stare decisis)?  Some of our friends on the left think that precedent is a ratchet.  All precedents favoring their view are sacrosanct, while any precedents they disagree with are constantly subject to reexamination.  Justice Thurgood Marshall sadly ended his tenure on the high court with one of the most hypocritical opinions I have ever seen, excoriating his colleagues for overturning a relatively minor (and, in my view, clearly wrong and unjust) Eighth Amendment precedent while Marshall himself had obstinately refused to accept a far more important (and clearly correct) Eighth Amendment precedent for 15 years.

On the merits, I think that flag burning has to be considered "protected speech" as long as we consider "speech" to extend beyond the literal meaning of the word into nonverbal expression.  Anti-flag-burning statutes target content rather than "time, place, or manner."  To authorize such statutes within a coherent body of free-speech jurisprudence, we would have to tear up far more than Johnson itself, and that is enough to let the sleeping dog lie. 

Of course, we can and should exercise our own right of free speech to denounce the flag-burning scum in the most vigorous terms, but the government cannot punish them unless they violate some other, non-expression-directed law.  Burning someone else's flag without permission is a crime.  Burning a flag at a gas station ought to be a crime, if it isn't already.

News Scan

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OSU Attacker Identified:   The man who drove his car into a group of Ohio State University students and then stabbed several of them with a butcher knife before he was shot and killed by a police officer has been identified as 18-year-old Somalian immigrant Abdul Razak Ali Artan.  Aamer Madhani of USA Today reports that, prior to the attack, Artan had posted a rant on Facebook saying that he had reached a "boiling point" about America's interference with Muslim communities.  He also referred to lone wolf attacks, and described radical Muslim cleric Anwar al-Awlaki as a hero.  According to news reports police are still searching for a motive.  

Is Twitter-Stalking Free Speech?  A Dallas man in jail on charges of felony stalking, claims that the threatening Twitter posts he made against a judge who presided over his previous conviction for tweeting threats to kill his brother-in-law are protected by the First Amendment.  The Dallas Morning News reports that 46-year-old Babak Taherzadeh used up to 10 separate Twitter accounts to stalk the judge and his family and threaten their safety.  While some legal experts insist that hate speech is protected by the Constitution, there is a line when a person's safety is threatened.   In its 2014 ruling in Elonis v. United States, the Supreme Court declined to find targeted threats of murder on social media serious enough to constitute a felony.  The CJLF brief in that case is here.
Although this CBS story refers to Dylann Roof as the "suspect" in the Charleston church massacre, I'm not sure why.  No sane person I've ever heard of has any doubt that Roof is the killer.  Saying that he's the "suspect" in the murders is like saying Fidel Castro was "suspected" of being the dictator of Cuba.

But I digress.  Roof asked for, and today was granted, the right to represent himself. I of course have no idea what the defense will be but, like the judge, I think this is a strategically poor decision.  It's unlikely that Roof will be anywhere near as creative, or as smooth a talker, as an experienced criminal defense lawyer would have been.

Roof's choice does have at least one advantage for those of us who think the death penalty should be imposed, without manufactured delay, on defendants unquestionably guilty of grotesque murders:  The knowing choice to represent one's self after having been frankly warned by the court of its perils is a waiver of an ineffective assistance of counsel claim on appeal.  When you buy the package knowing the defects of what's inside, you give up the right to complain that the merchandise was rotten. 

I can't say there's a lot I admire about Dylann Roof, but I respect his decision to take on his own defense.  In its own odd and revolting way, it's likely to be more truthful than the slicker version he put aside.

White Cop Guns Down Another Young Man of Color

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The story is here.  It's everywhere else tonight, as well.

Remember this the next time you see a statistic about how many "white cops gun down young men of color."  If the source isn't telling you the circumstances of the shooting, then it's telling you nothing.  It is, however, engineering a smear.

News Scan

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Mass Shooting at Ohio State: A shooting occurred this morning at Ohio State University. The Columbus Dispatch reports that a total of nine people have been transported to the nearby hospital and that one of the suspects in the active shooter situation on campus has been confirmed dead. It is reported that early this morning, a vehicle rammed a group of people outside one of the university buildings after which two individuals exited the vehicle, one brandishing a firearm, and the other holding a large knife. As of now, officials say the situation is secure but that classes will be canceled until further notice.

Church Shooting Suspect in Pro Se: A man facing the death penalty in South Carolina is choosing to represent himself in court. Rebecca Hersher from NPR reports the Dylan Roof, 22, has been charged with the murder of nine African American parishioners in the basement of a church in Charleston, South Carolina. For this crime, Roof will be facing 33 separate counts of federal hate crimes, in addition to a list of other charges. Roof made a motion in court to represent himself against these charges and waved his right to counsel. Separate murder charges are also being brought against Roof by the state of South Carolina. The trial for which is scheduled to begin in January.

Still Playing The Race Card: Long has it been the chant of the political left that the right wing conservatives and Trump supporting Americans are a group of radical race-driven bigots, the "Straight white males" of myth and legend. But Heather Mac Donald at the City Journal has a different take on things. In this article, Mac Donald argues that the racial tension we feel in our current political climate is a result of the identity politics that have been historically perpetrated by the left, not some inherent racial bias within the white population. Between the rise in shootings as a result of the Black Lives Matter movement, and the public outrage at our Commander and Chief publicly condoning said violence, Mac Donald claims that the radicalized politics we see today can be traced back to the prevailing tactics of the regressive identitarian left.

The Many Crimes of Fidel Castro

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Prof. Carlos Eire of Yale has this article in the WaPo:

One of the most brutal dictators in modern history has just died. Oddly enough, some will mourn his passing, and many an obituary will praise him. Millions of Cubans who have been waiting impatiently for this moment for more than half a century will simply ponder his crimes and recall the pain and suffering he caused.
*           *           *
If this were a just world, 13 facts would be etched on Castro's tombstone and highlighted in every obituary, as bullet points -- a fitting metaphor for someone who used firing squads to murder thousands of his own people.
*           *           *
In sum, Fidel Castro was the spitting image of Big Brother in George Orwell's novel "1984." So, adiós, Big Brother, king of all Cuban nightmares. And may your successor, Little Brother, soon slide off the bloody throne bequeathed to him.
Update:  I don't often agree with Nancy Pelosi, but when she is right, she deserves credit for it.

A Thanksgiving to Unite Us

Melanie Kirkpatrick has this story in the WSJ on President Lincoln's 1863 proclamation and the magazine "editress" who led the campaign for the Thanksgiving holiday in its modern form.

Election Day has come and gone, and after one of the most divisive campaigns in memory, "healing" seems to be the word of the hour. What better time to begin than Thanksgiving, which Benjamin Franklin called a day of "public Felicity" to give thanks for our "full enjoyment of Liberty, civil and religious." Thanksgiving, our nation's oldest tradition, is a moment to focus on our blessings as Americans, on what unites us, not on what divides us.

Such was the case in 1863, when Abraham Lincoln called for a national Thanksgiving celebration. He did so at the urging of a farsighted magazine editor who believed that a Thanksgiving celebration would have a "deep moral influence" on the American character, helping to bring together the country, which was divided over the issue of slavery. Lincoln's 1863 proclamation was the first in the unbroken string of annual Thanksgiving proclamations by every subsequent president. It is regarded as the beginning of our modern Thanksgiving holiday.

Is Jeff Sessions a Racist?

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Larry Thompson is a former Deputy Attorney General for Pres. George W. Bush. He signed an anti-Trump letter in the recent campaign, along with quite a few other former Bush Administration officials.  His more recent letter to the editor (I believe the editor of the NYT, concerning its story on Nov. 17) tells us a good deal about Mr. Trump's nominee to be Attorney General.

AP Calls Prop. 66

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Associated Press "called" the result on Proposition 66 last night.  Brian Melley of AP has this story.

The opponents are making their usual claims in the press that Prop. 66 won't work.  However, they sing a very different tune in court.

In the petition filed in the California Supreme Court in Briggs and Van de Kamp v. Brown et al., S238309, former California Attorney General John Van de Kamp declares under penalty of perjury:

It [Proposition 66] will also make it more likely, and more immediate, for persons sentenced to death to face their executions.
Yes, that was exactly the idea.  The opponents are apoplectic about Proposition 66's passage precisely because they know it will work, even while they tell the people the opposite.

News Scan

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Death Penalty Possible for 1 of 4 AL Killers:  Alabama prosecutors are still deciding whether they will seek the death penalty against a 22-year-old man who, along with three teens, killed two men during a 2015 crime spree.  Ashley Remkus of AL reports that if Joseph Conwan is convicted of killing Joshua Davis and Antonio Hernandez-Lopez, he will either be sentenced to death, if capital punishment in sought, or face life in prison without the possibility of parole.  Conwan was 20 in 2015 when he and his brother Cedric Conwan, then 16, along with Cortez Mitchell and Amani Goodwin, 16 and 17 at the time, respectively, engaged in a crime spree that included several armed robberies, shootings into homes and the two fatal shootings.  This week, the three teens were denied youthful offender status, which would have guaranteed they not be sentenced to more than three years.  They are ineligible for the death penalty because they were juveniles at the time the crimes were committed.  All four are charged with three counts of capital murder, six counts of first-degree robbery and two counts of shooting into an occupied dwelling.

MI Officer in Critical Condition After Shooting:  A Wayne State University police officer was shot in the head Tuesday night while patrolling off the Detroit, Mich., campus.  J.J. Gallagher, Tom Liddy and Morgan Winsor of ABC News report that Officer Collin Rose, 29, a five-year veteran of the force, was conducting a traffic stop when he sustained his injury. The nature of the stop and the events leading up to the shooting are still being investigated.  Rose underwent surgery and remains in critical condition, with doctors stating that it is still too early to say if he will recover.  The shooting comes just days after a violent weekend, in which four officers in three states were shot in a 24-hour period, one of them fatally.  Rose is the first Wayne State University officer to be shot in 36 years.

Chattanooga School Bus Driver was in Another Crash 2 Months Ago:  The man who crashed a school bus earlier this week, killing five children and injuring several more, was reportedly involved in another school bus crash two months ago.  Holly Yan, Natisha Lance, Madison Park and Martin Savidge of CNN report that in September, Johnthony Walker, who received his commercial driver's license in April, was driving around a blind curve when he sideswiped another vehicle after failing to yield, though there were no injuries and only minor damage to both vehicles.  Walker was driving with 37 children on board his school bus on Monday afternoon when he swerved off the road and plowed into a tree.  The crash killed five children and a dozen others remain hospitalized, some with serious head and spinal injuries.  Walker was allegedly driving well above the posted speed limit, and his blood sample has been sent to the state lab for testing.  He faces five counts of vehicular homicide and charges of reckless endangerment and reckless driving.  The bus company that hired him, Durham School Services, is under intense scrutiny.

Exhaustive Reporting on Black Lives Matter

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Commentary Magazine has come out with the most thorough reporting on Black Lives Matter I have ever read.  It's not short, but what it lacks in brevity it more than makes up for in the depth, diligence and insight of its account.

News Scan

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Driver in TN School Bus Crash Charged:  The driver of a school bus that crashed in Chattanooga, Tenn., on Monday, killing five young children, has been arrested and charged.  Michael Edison Hayden, J.J. Gallagher, Tom Liddy and Jeffrey Cook of ABC News report that Johnthony Walker, 24, was driving the bus carrying 37 children Monday afternoon "well above the posted speed limit of 30 mph" when he lost control and crashed into a tree.  Among the five children who died, three were in fourth grade, one was in first grade and the other was a kindergartner.  Six other children remain in intensive care.  Walker faces charges of vehicular homicide, reckless endangerment and reckless driving.

Gunman who Killed San Antonio Cop Arrested:  The suspected gunman who killed a San Antonio, Tex., police detective in cold blood on Sunday has been taken into custody.  Julia Jacobo and Michael Edison Hayden of ABC News report that Otis Tyrone McKane, 31, was arrested without incident on Monday afternoon and said he wished to apologize to the family of the slain officer, 20-year veteran Detective Benjamin Marconi, 50.  Marconi was shot to death on Sunday afternoon while sitting in his patrol car writing a ticket.  The gunman, identified as McKane, pulled up in a car behind Marconi, stepped out and shot the officer in the head at close range before driving off.  After his arrest, McKane told police that he was upset over losing a custody battle and "lashed out at somebody who didn't deserve it."  Charges against him are pending.

NJ Lawmakers' Bill would Reinstate Death Penalty in Extreme Cases:  Two New Jersey senators have introduced a bill that would restore capital punishment in certain cases classified as "extreme."  S.P. Sullivan of NJ Advance Media reports that the bill, authored by Steve Oroho (R-Sussex) and Jeff Van Drew (D-Cape May), who cited recent terror attacks and ambushes on law enforcement officers, would restore the death penalty in cases involving the murder of a police officer, the murder of a child in commission of a sex crime, deaths caused by an act of terror, killings committed by persons previously convicted of murder and for serial killers.  The state eliminated the death penalty nearly 10 years ago.  In order to pass, the bill have have to be approved by the Democrat-controlled state Legislature.  In the same vein, responding the recent ambush attacks on police officers, Jacksonville Police Chief Tony Grootens has proposed making the killing of a police officer a federal crime punishable by death.

Amnesty for Hillary

In 1868, the treason trial of Jefferson Davis was pending.  He certainly did levy war against the United States, which is the constitutional definition.  See Article III, § 3.  Nonetheless, the President decided to issue a blanket amnesty to help heal the nation's wounds, and that was the end of the case.  See Case of Davis, 7 F. Cas. 63, 102.

Our country today is not as bitterly divided as it was then, but healing is still in order. 

As former Attorney General Mukasey explained in the Wall Street Journal in July, the evidence against Hillary Clinton clearly fulfills the requirements of the two criminal statutes involved, and FBI Director Comey's statement that no reasonable prosecutor would pursue the charges was just wrong.  Mr. Mukasey, after all, is a reasonable prosecutor.

Even so, there are times when other considerations come into play so that a prosecution should not be pursued even though fully justified on the facts and the law.  President-elect Trump has evidently decided that this is one of them. 
Damian Paletta and Byron Tau have this story in the Wall Street Journal.

And while candidates should generally keep their campaign promises, it is sometimes better to let those go also.
Those who seek a safer and more peaceful country have a huge amount to be thankful for this year.  Indeed, it's hard to recall a year where we have done better across the board.

The good news is wherever you look: Capital punishment, criminal justice reform, and respect for the police.

It's not that there's no bad news; there's plenty of that too, as the disastrous, pro-criminal policies and rhetoric of the Obama years come home to roost. It's that the good news predominates by so much.

News Scan

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Four Cops Shot in Three States on Sunday:  Four police officers were shot, one of them fatally, in three states on Sunday, three incidents of which appeared to be targeted attacks.  Fox News reports that by Monday, police in San Antonio, Tex., still had not apprehended the suspect who fatally gunned down 20-year veteran Detective Benjamin Marconi, 50, while he sat inside his patrol vehicle writing a ticket on Sunday afternoon.  He was shot twice in the head at close range, the final shot fired as the gunman reached inside Marconi's passenger window.  The gunman was not the person Marconi had stopped and was administering a ticket to.  By Sunday evening, a St. Louis police sergeant, also a 20-year veteran, was shot twice in the face while driving down the street, but is expected to survive.  The gunman, who shot at the officer from another car, was later killed after exchanging gunfire with others officers, none of whom were injured.  Then, an officer in Senibel, Fla., was shot and wounded as he sat in his patrol car after a traffic stop.  The suspect was eventually taken into custody.  The final incident occurred in Gladstone, Mo., when and officer was non-fatally shot by a man in his teens who had fled from a traffic stop.  When the officer caught up to him, the teen pulled out a handgun, shots were fired and the teen was killed.  So far this year, 56 state, county and local officers have been shot while on duty.

OH Gang member gets Death for Triple Homicide: 
A jury recommended the death penalty on Saturday in the case against an Ohio gang member, who killed three people and wounded three others last year in a gang-related dispute at a Cleveland barbershop.  The AP reports that Douglas Shine Jr., 21, was convicted earlier this month of aggravated murder and dozens of other charges in the barbershop shootings as well as his role in arranging the killing of an eyewitness.  After his arrest for the February 2015 murders, which was allegedly because one of the victims, rival gang member Walter Lee Barfield, had stolen a gun from one of Shine's fellow gang members, Shine conspired with his brother from jail to kill Barfield's brother because he had identified him as the shooter.  The eyewitness was killed in April 2015, and Shine's brother is awaiting trial on aggravated murder charges.  Shine's formal sentencing is scheduled for Dec. 5, during which  Cuyahoga County Common Pleas Judge Joan Synenberg will decide whether to impose a death sentence or give Shine life in prison without parole.

Immigration Law Could Dramatically Change if Sessions is AG:  Sen. Jeff Sessions, the "Senate's leading crackdown proponent" on immigration, may have the chance to prosecute sanctuary cities and turn around immigration laws if confirmed as the next attorney general.  Stephen Dinan of the Washington Times reports that if confirmed as AG, Sessions will have the power to strip federal funding from sanctuary cities, which protects illegal immigrants, due to last year's ruling by the Justice Department's inspector general stipulating that it is required under federal law that localities cooperate with immigration agents.  Some sanctuary cities have already fired back, saying they'll resist changes.  Meanwhile, democrats are gearing up to fight Sessions' confirmation.
Expecting the sourpuss contingent at the New York Times to give Jeff Sessions a fair shake is like expecting George Soros to have a kind word for America.  So it was no surprise when the Times' hatchet job appeared a few days ago, "Jeff Sessions as Attorney General: An Insult to Justice."  There was the usual wail about racism, as phony as it is ancient, but what caught my eye was this breathtakingly ignorant squib about Sen. Sessions and sentencing "reform":

Based on his record, we can form a fairly clear picture of what his Justice Department would look like:....Forget [about] any federal criminal-justice reform, which was on the cusp of passage in Congress before Mr. Trump's "law and order" campaign. Mr. Sessions strongly opposed bipartisan legislation to scale back the outrageously harsh sentences that filled federal prisons with low-level drug offenders. Instead, he called for more mandatory-minimum sentences and harsher punishments for drug crimes.

Question:  Does the NYT have anyone  --  really, anyone  --  in Washington who actually follows justice-related legislation?

Study: Racist Police Narrative is False

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For the past eight years, the world has been told that American law enforcement is infected with racism.  The President, the Attorney General, most civil rights leaders, most of academia, seemingly every Democrat politician in the country, and the national media have repeatedly cited the disproportionate number of arrests, convictions and incarceration of young black males as proof that white police officers and prosecutors are literally rounding up blacks and throwing them in prison.  We have been told that the racial bias is so prevalent that white police officers routinely single out black suspects and murder them.  The Black Lives Matter movement was formed specifically to fight this perceived injustice and over the past couple of years more than a few police officers have been assassinated by BLM followers.  John Lott, Jr., of the Crime Prevention Research Center and Carlisle Moody of the College of William and Mary have released a study mentioned below in the News Scan which found that black suspects are more likely to be shot by black police officers and female police officers than by white police officers.

News Scan

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AR Man Sentenced to Death for Killing Son:  An Arkansas man was sentenced to death this week for his son's murder, an outcome prosecutors said was not only justice for the little boy, but for the killer's other children who suffered physical and sexual abuse at his hands.  Zuzanna Sitek of KFSM reports that a jury on Tuesday recommended the death penalty for Mauricio Torres, who was convicted a day before for capital murder in the 2015 death of his son Maurice Isaiah Torres, 6.  He also received an additional 20 years for first-degree battery.  Five of Torres' children and stepchildren testified against him, all of whom detailed years of physical and sexual abuse perpetrated by him.  Torres' wife, Cathy, is scheduled to go to trial next year on the same charges.

GA Carries out 8th Execution of the Year:  A Georgia death row inmate was executed on Wednesday, marking the state's eighth execution of the year.  Kate Brumback of the AP reports that Steven Frederick Spears, 54, died by lethal injection after refusing to initiate any post-conviction appeals.  Spears was convicted in 2001 for murdering his ex-girlfriend, who he choked to death after suspecting she was romantically involved with someone else.  Eight is a record number of executions in a calendar year for Georgia, and the most carried out this year by any state.  A total of 18 inmates have been executed in 2016.

POTUS Encourages Violent Protesters:  President Obama shared some words of encouragement this week with the groups of Anti-Trump protesters that have been gathering all over the nation since the election and carrying out violent demonstrations.  Debra Heine of PJ media reports that President Obama stated, "I would not advise them to be silent," citing the supposed regularity with which presidential nominees are faced with mob protests.  He failed to address the widespread occurrence of rioting and destruction that has followed these demonstrations as they moved their way through several major U.S. cities.  It is anticipated that these demonstrations will continue and that protestors plan to interrupt Donald Trump's coming inauguration.

Racist Cop Claim Debunked in Study:
  John R. Lott, Jr and Carlisle E. Moody have released a study report on officer-involved shootings in the United States, concluding that there is "no statistically significant difference between killings of black suspects by black and white officers," debunking the claim that racist white renegade cops are targeting minorities.

Sen. Sessions Nominated for AG

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Yes on 66 Committee Declares Victory

Californians to Mend, Not End, the Death Penalty. No on Prop 62, Yes on Prop 66 issued a press release this afternoon.  The text follows the break.

Update (11/23):  AP "called" the race the evening of Tuesday, November 22.  The prior information noted here that AP had called it the previous Friday was incorrect.

News Scan

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Trial Begins for CA Sex Offender who Killed Four Women:  One of two convicted sex offenders charged with raping and killing four Southern California women while wearing an electronic monitor began his trial on Wednesday.  The AP reports that Steven Dean Gordon, 47, and Franc Cano, 30, who will be tried separately at a later date, have pleaded not guilty to rape and murder with special circumstances.  Both men are registered sex offenders with convictions in separate cases of lewd and lascivious acts on a child.  The men are believed to have known each other since 2010, when they cut off their GPS devices and fled to Alabama, where they were arrested.  Two years later, they cut off their devices again and fled to Las Vegas and were apprehended after two weeks on the run.  In 2013 and 2014, Gordon and Cano randomly targeted, raped and murdered four women, three of whom have never been found.  Gordon confessed to the murders during grand jury proceedings but the judge has excluded it from his trial because Gordon had told police prior to divulging the details of the killings that he didn't want to talk.  Both Gordon and Cano could face the death penalty if convicted.

Cellphones a Continuing Problem in CA Prisons:  The California Department of Corrections and Rehabilitation (CDCR) has confiscated over 8,000 cellphones from inmates across the state so far this year, highlighting the ongoing problem facing corrections officials in keeping cellphones out of prisons.  Andria Borba and Leslie Donaldson of KPIX 5 report that state inmates have used contraband cellphones to coordinate at least one prison escape, and there are at least 79 documented cases of victim intimidation over Facebook by inmates on cellphones.  To combat the problem, CDCR installed a blocking system called Managed Access in 18 of the 33 state prisons, but it has proven to block and interrupt an average of 150,000 calls and texts of other people in close proximity to the prison, causing concern over its potential to interfere with emergency calls.  Another device about to be installed in every California prison, Cell Sense, consists of a portable tower that has the ability to detect cell phones even if the battery is removed.

Defending Prop 66:  The ACLU has filed suit to halt resumption of executions in California, despite Californians voting in favor of expediting the death penalty process.  Listen to CJLF Legal Director Kent Scheidegger defend Proposition 66 on KFI's John and Ken show.

FedSoc National Lawyers Convention

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The Federalist Society's National Lawyers Convention is underway in Washington.  The theme is "The Jurisprudence and Legacy of Justice Scalia."  Regrettably, I am not able to attend this year.  Duty calls.

Live streams of some of the panels and links to video of concluded panels are available at the FedSoc Blog.  The criminal law panel is at 3:30 EST today.  Not sure if it will be live streamed.  Justice Thomas is the dinner speaker at 7:00 EST.  Update:  They are live streaming the Separation of Powers panel instead.

Of course, there is much more to the convention than the presentations, interesting as they are.  Conversations in the hallways and at the events with people I only see "face-to-face" once a year are just as valuable.  I am sure that the question of who will be the next Attorney General is a hot topic, and the question of who will be nominated as the successor to Justice Scalia is even hotter.

Passing the Baton With Grace

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Jason Gay reports in the Wall Street Journal on passing the leadership baton painfully yet gracefully.

UK Foreign Secty on Turkey DP

Alex Barker, Arthur Beesley, and Henry Mance report for the Financial Times:

Boris Johnson has urged the EU to stop pushing Turkey "into a corner" over the death penalty, in an intervention that stunned fellow ministers still bristling over the British foreign secretary's outspoken warnings over Turkey's EU membership during the Brexit campaign.

An already tense meeting of foreign ministers in Brussels flared up on Monday as Mr Johnson argued that the bloc must avoid lecturing Ankara over potentially introducing capital punishment.
Once upon a time, Timothy Hennis was hailed by the anti-DP crowd as an innocent man, wrongly convicted and sentenced to death by a badly flawed system and subsequently exonerated.

Then improved DNA technology proved him stone cold guilty.

Drew Brooks reports for the Fayetteville Observer:

An Army appeals court has upheld the death sentence of Timothy Hennis, a former Fort Bragg soldier who in 1985 butchered a mother and two of her young children.

A four-judge panel in the Army Court of Criminal Appeals filed an opinion last month after a review of 49 possible errors in Hennis' 2010 court-martial, which was the third time he stood trial in the case.

The court found that Hennis' claims of double jeopardy were without merit, as was his claim that the Army did not have jurisdiction in the Fayetteville murders.

"We conclude the approved sentence is correct in law and fact," the court opinion said. "Further, under the circumstances of this case, including appellant's rape of one of the murder victims, the vulnerability inherent in the young ages of the other two murder victims, and appellant's mutilation of all three murder victims, we conclude the adjudged and approved death sentence fits the crimes of which he was found guilty."

Prop. 66 Count Update

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As California counties continue to count previously unprocessed ballots, the percentages for Proposition 66 remain quite steady at 51-49.  I have run a calculation using the county returns so far and the number of unprocessed ballots for each county.

Assuming that the unprocessed ballots for each county come in at the same yes/no percentages as the ballots for that county counted so far, the statewide totals will remain 51-49.  That assumption has held quite well so far, but of course we will not know until it is done.

News Scan

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Gun Recovered in Officer Shooting tied to 5 AK Murders:  A gun used in the shooting of an Alaska police officer over the weekend has been linked to at least five homicides in Anchorage this year.  Ben Anderson and Michelle Theriault Boots of the Alaska Dispatch News report that on Saturday morning, while responding to a report of a theft suspect, Anchorage police Officer Arn Salao was shot four times in what was described as an "ambush" by James Dale Ritchie, 40.  Two other officers arrived during the shootout and returned fire, killing Ritchie.  The gun used by Ritchie, a Colt Python .357, was confirmed Tuesday to be linked to five murders, including a double homicide in July, another July homicide and a double homicide in August.  Investigators are still working to determine Ritchie's ties to the crimes.  Salao is expected to survive.

Army Appeals Court Upholds Death Sentence:  A United States Army court of appeals has upheld the death sentence of a former Fort Bragg soldier who murdered a mother and her two children over three decades ago.  Drew Brooks of the Fay Observer reports that a four-judge panel in the Army Court of Criminal Appeals issued its recent decision in the case of Timothy Hennis, following a review of 49 alleged errors made in Hennis' 2010 court-martial, marking the third time Hennis stood trial in the case.  The court concluded that Hennis' claims were without merit and that the death sentence that had been issued prior was appropriate.  Hennis killed Kathryn Eastburn in 1985, along with her two daughters, 5 and 3.  A third child, 22-months, was found alive.

Parolee Arrested in Connection with Fairfield Murder:  A California parolee was arrested in Sacramento on Monday in connection with a Fairfield murder committed last month.  Elk Grove News reports that on Oct. 28, Fairfield police received a call about repeated gunshots. When they arrived on the scene, they found a 26-year-old man suffering from multiple gunshot wounds, and he later died in the hospital.  VaShawn Davis, 24, a parolee, was identified as the suspect by Fairfield detectives and was arrested for murder as well as for an outstanding for violating his parole.

Sentencing Commission: Do No (More) Harm

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For about the last two years, there has been a major crime surge across this country, as even liberals now concede.  The heroin crisis is out of control.  A major part of the reason for this is repeat criminals:  It would be all to the good if the thousands of inmates we release each year went straight, but by-and-large, that is not what happens.  To the contrary, we have an appalling overall recidivism rate of 77%. For violent crimes, it's over 70%.  And all those figures are low, because a huge amount of crime never gets reported.  This is particularly true of drug crimes, a major component of federal criminal enforcement.

Sooner or later, virtually all criminals will finish serving their sentences, and it would be unjust (and illegal) to keep them incarcerated simply because we know the majority will go back to crime.  Some will indeed straighten out and, regardless, indefinite incarceration is not the American way.

But we face an entirely different situation with respect to criminals who get early release from legal sentences they have earned.  In federal jurisdiction, thousands of early releases have already been allowed, and many thousands more are underway.  This is a part of the recidivism (and the related crime surge) problem we can do something about right now.  Specifically, the US Sentencing Commission must curb its early release binge.  First, however, it will have to show at least a modicum of interest in the degree of harm its early release policies have already caused, and how much more damage, if left unchanged, they are likely to foment.

Victims of early-released federal inmates are human beings with rights and feelings no less than their victimizers.  They deserve our attention and help.  At rock bottom minimum, they deserve more attention from the Sentencing Commission than they've been getting. 

Setting the Details on Execution Methods

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The ACLU is really getting desperate to stop resumption of executions in California.  They certainly lost on one of the ballot measures last week, and it is close to certain they lost on the other.  AP has not "called" Proposition 66, but the Secretary of State's Office did remove it from its "close contests" page this afternoon when the margin inched up to the 2% threshold for "close."

In California, and in almost all states, the legislature sets the method of execution in broad terms and the prison department fills in the details.  That has been the law here and almost every capital punishment state for a long time.  The outlier is Arkansas, where a howler of a decision by the state supreme court said that violates the separation of powers.

Maura Dolan reports in the L.A. Times:

The ACLU of Northern California challenged a state law that gives the Department of Corrections and Rehabilitation wide flexibility in establishing execution procedures.

Delegating such policy decisions to a state agency, the suit says, violates separation of powers provisions of the California Constitution.
Seriously?  It never has before.

News Scan

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Passerby Shoots, Kills Man Beating Deputy:  A man who physically attacked a Florida sheriff's deputy Monday morning was shot and killed by an intervening bystander.  Fox News reports that the incident began after Lee County Deputy Dean Bardes, a 12-year veteran of the department, attempted to make a traffic stop, prompting the driver to take off at unsafe speeds.  The car chase ended on an exit ramp, where the suspect got out of his car, pulled Bardes out of his car and repeatedly beat him.  Another driver then got out of his car and intervened, telling the suspect that he'd shoot him if he refused to stop beating the deputy.  When the suspect refused to comply, the bystander shot three times.  Bardes was not hit and sustained only minor injuries from the attack.  The unidentified suspect, who was unarmed, later died.  The bystander, whose identity also remains anonymous at this time, possessed a concealed weapons license.  It is not known if any charges will be sought.

CA Serial Killer Denied Parole:  A California serial killer who murdered and mutilated more than two dozen farm workers over four decades ago was denied parole for the eighth time last week.  The AP reports that Juan Vallejo Corona, 82, was denied parole on Thursday for another five years for the murders of 25 men, whose bodies were discovered buried on two Yuba City ranches in 1971.  Corona was convicted in 1973 of 25 counts of first-degree murder, and again in 1981 after it was overturned on appeal.  He skirted the death penalty because it had been ruled unconstitutional in the state during his first trial.  At the time the men's remains were discovered, the murders represented the deadliest rampage in the nation.

Psychologists Testify TX Child Killer is Unfit for Execution:  A Texas man who murdered his two children over a decade ago is not mentally competent for his upcoming execution, psychologists testify.  Ed Adamczyk of UPI reports that John Battaglia, 60, is scheduled to die on Dec. 7 for fatally shooting his daughters, 6 and 9, in 2001 while on the phone with his estranged ex-wife, who was pleading with him not to hurt their children.  Battaglia's wife had reported a parole violation to the authorities that was going to put him back in jail.  Prosecutors argue that Battaglia has sufficient understanding of his crime, while the defense states that he suffers from delusional disorder, marked by a strong belief in untrue things.  Battaglia was initially scheduled to die in March 2016 but it was postponed for further psychological evaluation.  More testimony will be heard on Tuesday.  Battaglia's competency will then be at the determination of the judge.
Last March, as noted here, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed the clearly erroneous ruling by Judge Claudia Wilken enjoining the implementation of the regulations for the federal habeas corpus "fast track."  See the earlier post for details.

Today the Ninth finally denied the petition for rehearing en banc (i.e., to have the case reconsidered by an 11-judge panel). 

The other side can ask the U.S. Supreme Court to take the case, but it is unlikely they will.

News Scan

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CA Officer Killed, Suspect in Custody:  A California sheriff's deputy was fatally shot in the head "execution style" over the weekend, and the suspect was captured and taken into custody.  Devon Armijo of KCRA reports that Stanislaus County Deputy Dennis Wallace, 53, a 20-year veteran of the department, arrived at a fishing access on Sunday morning to investigate a report of a suspicious vehicle and person.  After finding that the vehicle was reported stolen, he requested backup.  When backup arrived they discovered Deputy Wallace dead from two gunshot wounds to the back of the head.  The suspected gunman, David Machado, had a felony warrant at the time of the stop and was apprehended by police later in the day after attempting to steal a woman's purse.  The charges Machado will face have yet to be released.

CA Cop Killer Faces Capital Murder Charges:  A California parolee is facing capital a murder charge for fatally shooting a sheriff's sergeant last month, and could face a possible death sentence.  Debbie L. Skylar of My News LA reports that Trenton Trevon Lovell, 27, is charged with the early October killing of Lancaster Sheriff's Sergeant Steve Owen, 53, a 29-year veteran of the department, who was responding to a burglary call.  Lovell was on parole at the time of the shooting and had been convicted of robbery as a juvenile in 2006 and again in 2009 as an adult.  Lovell faces a murder charge with special circumstance allegations of murdering a peace officer in performance of their duties and committing a murder to avoid a lawful arrest.  Prosecutors have yet to decide whether to seek the death penalty.

Border Apprehensions Surge at Start of FY:  Border apprehensions are already record high in the first month of FY2017, says Customs and Border Protection.  Brittany M. Hughes of MRCTV reports that in October, the first month of the new fiscal year, 46,197 illegal immigrants were apprehended at the southwest U.S. border, including 13,124 members of family units -- 118% higher compared to October 2015 -- and 6,754 unaccompanied minors.  Last month's apprehensions exceeded the heaviest month in FY2016, May, when 40,337 illegal immigrants were caught.  Many of the illegal immigrants who are apprehended will be released into U.S. communities with an order to appear before an immigration judge, though more than half will fail to show up and disappear into the shadows.

The Unmentioned Obama Legacy: Rising Crime

Gallup's crime polling last month yielded some interesting results, apart from the surge in respect for the police.  In particular, the poll pointed to this little-noticed fact (emphasis added):

Americans' direct experience with crime is at a 16-year high, consistent with a gradual increase -- from 22% in 2001 to 29% today -- in the percentage saying that they or a household member was the victim of a robbery, vandalism or violent crime in the past year.

In the same poll, Americans' perceptions of the seriousness of crime nationally and in their local area was unchanged from 2015. But longer term, it has worsened slightly since 2001. As a result, while crime was not at the top of the candidates' or voters' agenda in the 2016 presidential campaign, the issue may be ripe for policymakers at all levels of government to address.

What's the smart way for Congress to address the problem of rising crime?  By decreasing the cost of committing crime, as sentencing reformers would have it?

The question answers itself.

Veterans Day

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With all that is happening right now, it would be easy to forget, but we must not.  Let us all thank the veterans of our armed forces, without whom all our country's great documents of liberty would be nothing but empty promises. 

News Scan

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PA Gunman Kills Officer, Pregnant Woman and Self:  A Pennsylvania man who opened fire on two police officers early Thursday, killing one and injuring the other, was found inside his home with a self-inflicted gunshot wound.  Fox News reports that the gunman, Michael Cwiklinski, was found dead in the home along with a six-months pregnant woman who had a Protection From Abuse order against him.  The two officers had responded to a call around 3:15 a.m. and were immediately "ambushed upon their arrival."  The deceased officer was identified as Scott Leslie Boshium, 52.  The deadly shootout comes just one week after a New York City police sergeant was fatally shot and another wounded by a man who had broken into his estranged wife's home.  It also comes amid a particularly deadly year for law enforcement.  Heather Mac Donald addresses the subject in the City Journal, emphasizing the contrasting views between the two presidential candidates on the rampant violence against law enforcement, noting that Hillary Clinton embraced Black Lives Matter and their volatile message and accusations of racist police, while Donald Trump condemned the movement and stated a desire to restore law and order. 

CA Couple Charged with Murder of Sheriff's Volunteer:  A California couple has been charged in the brutal death of a volunteer with the Alameda County Sheriff's Office, whose body was discovered in an Oakland park last week bludgeoned, stabbed and burned beyond recognition.  Kimberly Veklerov and Michael Bodley of SF Gate report that Laura Rodgers and Curtys Taylor, both 23, have been charged with murder in the death of Karla Ramirez-Segoviano, 21.  Rodgers was a friend of Ramirez-Segoviano and allegedly lured her to a park where she was repeatedly stabbed, beaten, doused with gasoline and set on fire.  Her body was found in a creek bed last Thursday, but it is unclear when she was killed.  Also uncertain is why she was targeted.  Rodgers, who admitted to the murder the same day the body was discovered, faces an additional charge of use of a deadly weapon.

Prop 57 Passes, Allowing Early Paroles:  Following the approval of Proposition 57 this week by California voters, at least 30,000 of the state's 130,000 state inmates could be considered for early release.  Don Thompson of the AP reports that the widely criticized measure will allow inmates convicted of domestic violence, human trafficking, assault with a deadly weapon and rape of an unconscious person -- to name a few -- eligible for early paroles.  Gov. Jerry Brown says the goal of the measure is to promote rehabilitation, but opponents believe it gives corrections officials too much power to overrule the sentencing decisions of judges and is ultimately dangerous, putting the safety of Californians and their communities at risk.  The state Legislative Analyst's Office projects that almost a quarter of inmates could seek parole under the measure.  Brown's administration predicts approximately 7,000 inmates will be immediately eligible for parole consideration once the law take effect.
C&C is not primarily about politics, but politics makes itself felt in staffing any new administration.  The primary goal, however, is to bring in people who know what they are doing and whose integrity, experience and judgment are widely respected, even if their views aren't shared.  Obviously, you also need people in line with what the new President told the electorate he was going to do if he won.

With this in mind, I'll throw out some suggestions about who I think would be good appointments in the coming Trump Administration.

News Scan

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Grieving Father Sues BLM over Fallen Son:  The grieving father of a Dallas police officer killed in the ambush shooting in July that claimed the lives of five officers is bringing charges against the Black Lives Matter movement and associated groups.  Claire Z. Cardona of the Dallas Morning News reports that Enrique Zamarripa has filed a 43-page lawsuit in the U.S. District Court of the Northern District of Texas naming the Black Lives Matter movement as well as 13 additional defendants, including the Nation of Islam, Reverend Al Sharpton, the New Black Panthers Party and Black Lives Matter activist DeRay McKesson, as those responsible for the anti-police rhetoric that incited Micah Johnson to shoot at police officers during a demonstration, which claimed the life of his son, Patrick Zamarripa.  Zamarripa is seeking damages of up to $550 million.  

AL Murderer Challenges Death Sentence: 
An Alabama man convicted of murder eight years ago is challenging his conviction and hoping to overturn his death sentence.  Lance Griffin of the Dothan Eagle reports that a hearing was held Tuesday in the case of David Phillip Wilson, a man who was convicted in 2008 for the murder of Dewey Walker, a 64-year-old cancer patient.  Wilson argues that there were arguments that may have been made by his previous defense counsel that could have spared him the death penalty, and intends to make those arguments now in hopes of having his death sentence overturned.

The Scope of the Victory

The Washington Post's coverage of Trump was as biased as I have seen during a campaign.  It did not outdo the NYT, but neither did it make much of an effort to resemble neutral journalism.  It was one snarky, condescending article after the next. I'm expecting oddles of sour grapes over the next few days.  For now, however, it does an accurate, short summary of the extent of Trump's victory:

Because his adopted party maintained its majorities in the Senate and the House, Trump can now advance a very ambitious agenda. He gets to pick Antontin Scalia's replacement, vindicating Mitch McConnell's decision to deny Merrick Garland a hearing and ensuring that the GOP will control all three branches of government. Because Barack Obama has relied so much on executive actions since the 2010 midterms, if he chooses, Trump can roll back many of the president's signature achievements. The Republican Congress can also use budget reconciliation to eviscerate Obamacare. TPP is definitively dead.

I want to emphasize especially the key role Sen. McConnell played in giving our country the opportunity, at least, to build on Justice Scalia's legacy rather than overrule it bit-by-bit.

Running the Table on the Death Penalty

Here are results on death penalty ballot measures as of 6:40 am PST:

Nebraska:  Referendum 426 to repeal the Legislature's repeal of the death penalty, thereby reinstating capital punishment in the state approved 61-39.  All precincts completely reporting.

Oklahoma:  Question 776 to amend the state constitution to preclude any doubt of the constitutionality of the death penalty approved 66-34.  All precincts completely reporting.

California, with 99.4% of precincts reporting (not all completely): 

Proposition 62 to repeal the death penalty defeated 46-54.

Proposition 66 to speed up the review of capital cases approved 51-49.

Note that California voters rejected repeal by double the margin that they rejected Proposition 34 four years ago.

Why the squeaker on 66?  A confusing ballot label did not really tell the voters what it is about, so the people who had not paid much attention to the issue before going into the voting booth did not know.  Californians tend to vote no on ballot measures when they are confused or uncertain.  In addition, a profoundly dishonest campaign of mailers, advertisements, and articles by the opponents telling outright lies about the proposition doubtless convinced many people who agree with the proposition's goals to nonetheless vote against it.

Update 11/14:  Yet despite all that, Proposition 66 still appears headed for victory.  With further information on the scope of uncounted ballots, my prior assessment of the unlikelihood of a change in result went too far, but a change is still unlikely.  The opponents seem to think so, too, because they have spent the resources to file a meritless suit to stop enforcement of Proposition 66 even before it is certified.

For Attorney General: Sen. Jeff Sessions

I've had the privilege of meeting with Sen. Jeff Sessions a few times.  He has been a beacon of honor in the Senate, a friendly and gracious man who nonetheless gives every ounce to fight for his convictions.

When the disastrous sentencing "reform" bill looked like it had momentum in Congress a year ago at about this time, Sen. Sessions, more than anyone else, stepped up to the plate.  His strong, early leadership made people ask questions: Yes, we'll give them a "second chance," but what will they do with it? Do we need to think more about recidivism rates?  Why do so many people think the criminal justice system is "broken" when, over more than 20 years, it has cut crime by half, saving millions of dollars and averting untold human misery?

Sen. Sessions has served in the Senate for almost 20 years.  Before his election, he was both a United States Attorney in Alabama and Attorney General of that state.

Those seeking sobriety, probity and faithful conservative convictions could not want President-Elect Trump to appoint a finer man to become Attorney General.

Black Lives Matter Gets Creamed

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Black Lives Matter was one issue that clearly divided President-Elect Trump from Sec. Clinton.  Trump robustly supported the police and proactive policing; Clinton made a point of playing up to (one might say "pandering to," but that would be ungenerous) BLM and its supporters.

Tonight's result leaves little doubt where the country is on the issue, not that there was a lot of doubt anyway, what with trust in the police surging in the recent Gallop poll to a near-record 76%.  BLM and its theory of America as a racist pigsty belongs to academics, think tanks and left-wing politicians, but commands almost no support elsewhere.

It was also heartening to see Mr. Trump give special recognition in his victory speech to Sen. Jeff Sessions and Mayor Rudy Giuliani, two of the leading voices exposing the folly of BLM.

Sentencing Reform Gets Creamed

Many in the "sentencing reform" community thought that, while they lost in this Congress, they would win in the next one.

So much for that.

The Republicans kept their Senate majority, meaning that Mitch McConnell will remain as Majority Leader.  Since, in addition, the law-and-order candidate won the Presidency, it will not be difficult for Sen. McConnell to maintain his wise opposition to mass sentencing reduction.

I'll be eager to see the spin the sentencing "reformers" will put on their wipeout tonight; they are nothing if not creative.  But make no mistake, the results of this election, combined with the horrendous spike in violent crime over the last two years, spell the end of the road for sentencing "reform."

Abolitionism Gets Creamed

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California rejected a move to end the death penalty by fat margin, a bigger margin than it did four years ago.  This is in a state Ms. Clinton won overwhelmingly.  The fate of Prop 66, which would expedite death penalty cases, is not decided at this hour, but is leading.

In Nebraska and Oklahoma, pro-death penalty measures won easily.  In other words, abolitionism lost everywhere it could lose, and it wasn't close.

Let there be no doubt who is the leader of tonight's landmark success in the Golden State:  Kent Scheidegger, together with CJLF and the people who back it. It's a privilege to be able to blog with Kent, Mike Rushford, and the CJLF's staff.

California Proposition Returns

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Initial California returns on the ballot propositions look good on the death penalty.  With 10.7% of precincts reporting, repeal Proposition 62 is failing 44.4% to 55.6% while "fix it" Proposition 66 is winning 52.3% to 47.7%.  However, early returns are not always representative of the final result, so it's too soon to celebrate.

Meanwhile, Gov. Brown's Jailbreak Initiative is clearly winning.  The underfunded opposition was evidently unable to inform the people just how bad this ill-conceived measure is.

Update 9:50 PST:  With 21.7% reporting, the results are little changed.

Update 11:05 PST:  With 38.4% reporting --  62 Yes 45.3% to No 54.7% -- 66 Yes 51.5% to No 48.5%

Update Midnight PST:  With slightly over half the vote counted, Proposition 62 remains steadily 9% behind, and I think we can confidently say that the people of California have rejected the repeal and reaffirmed their support for the death penalty yet again.

Proposition 66 remains 3% ahead and is very likely to be the law tomorrow.  It has been many years in the making.


Oliver Roeder posts at the 538 election blog:

As the presidential race unfolds dramatically, the death penalty is quietly having a successful night. The AP has called the vote on the death penalty ballot initiative in Oklahoma; the voters there have adopted a state constitutional amendment strengthening the punishment there, guaranteeing the state the power to execute and the ability to choose the means of execution. And Nebraska results are coming in. With 12 percent reporting, "repeal" leads in the vote on Referendum 426, 52-48. If that result holds, capital punishment will be reintroduced in the state. The state's legislature had eliminated it last year.
From the Stuff Stumbled Upon While Looking for Something Else File comes this press release of three weeks ago from Arizona Governor Doug Ducey:

Governor Doug Ducey today announced the appointment of Maricopa County Superior Court Judge Paul McMurdie to the Arizona Court of Appeals, Division One.

Judge McMurdie has served on the Maricopa County Superior Court since 2005.   He has presided over criminal, civil, and family law cases, and is currently the Presiding Family Court Judge. 

Prior to his trial court appointment, Judge McMurdie worked as Division Chief of Appeals and Research at the Maricopa County Attorney's Office, and also as Chief Counsel of the Criminal Appeals Section of the Arizona Attorney General's Office, under Attorneys General Grant Woods and Janet Napolitano.

It was in those pre-bench capacities that I had the pleasure of working with Paul.  Well done, Gov. Ducey.

News Scan

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Illegal Immigrant Charged with Killing TX Girl:  A previously deported Mexican immigrant in the country illegally has been charged with capital murder in the death of his 10-year-old cousin whose body was discovered in an east Texas well over the weekend.  Fox News Latino reports that Gustavo Zavala-Garcia, 24, was charged Monday with murdering Kayla Gomez-Orozco, his cousin through marriage.  Gomez-Orozco was reported missing on Nov. 1 and her body was found Nov. 5 down the well of a rented house.  Zavala-Garcia was deported in 2014 for a violent crime, and has been booked on a federal immigration detainer.

Officer Sues BLM Activist over Protest Injuries:  A Baton Rouge police officer has filed a lawsuit against a prominent Black Lives Matter activist for injuries he sustained during a July protest that turned violent.  The AP reports that the unnamed officer's federal lawsuit, filed against DeRay Mckesson and BLM, states that he was struck in the face with a piece of concrete that was hurled at police during the July 9 protest over the death of Alton Sterling, resulting in lost teeth and injuries to his jaw and brain.  While the suit doesn't directly accuse Mckesson of throwing the projectile, it claims he "incited the violence" and "was in charge of the protest," giving orders to other BLM members.  Mckesson, a Baltimore resident, was one of 200 protestors arrested during the protest and has sued the city of Baton Rouge over their arrests, claiming police used excessive force and violated their constitutional rights.

LAX Gunman Sentence to Life for 2013 Attack:
  The man accused of carrying out a deadly rampage at the Los Angeles International Airport three years ago was sentenced Monday to a mandatory term of life in prison plus 60 years.  Brian Melley of the AP reports that Paul Ciancia, 26, said before his sentencing that what began as a suicide plan turned into a mission to die in a blaze of glory by "[taking] up arms against my own government."  He "wanted to make a statement" by killing government workers, and carried out the Nov. 1, 2013 attack at the airport after his research indicated that the Transportation Security Administration (TSA) was the most hated agency in the country.  The attack claimed the life of TSA officer Gerardo Hernandez and wounded two other officers and a teacher.  Prosecutors had sought the death penalty against Ciancia, but it was taken off the table after he pleaded guilty to murder and 10 other charges.  But Paula M. Mitchell, professor at Loyola Law School and a co-author of the California initiative to abolish the death penalty, recently told a reporter that there is no data supporting the notion that guilty pleas have dropped where the death penalty has been taken off the table.  Really, Professor Mitchell?  Here's the data.

Can Money and Lies Buy an Election?

We are about to find out.

Back in August, as noted here, the UC Berkeley Institute of Governmental Studies asked Californians in simple terms if they were in favor of the change Proposition 66 will make.  The result was 3-1 in favor.

With no good argument against the initiative, the opponents -- with more money than the supporters -- have resorted to deceit.   Christine Mai-Duc and Allison Wisk report for the LA Times on campaign mailers, one of which is the notorious Willingham mailer by the No on 66 campaign we have discussed here before.  In order to bring a Texas case into the discussion, the No on 66 campaign tells the bald-faced lie that 66 is "modeled after laws in Texas."  There is no truth to that whatever.

Polls on 62 are mixed, and polls on 66 are very few.  The Field Poll is one of the few, but it simply read the respondents the confusing ballot label.  So we really don't know where things will come out tonight.
"October surprise" has come to mean a story damaging to a candidate that is sprung in late October, too late to be effectively refuted with the truth.  "A lie gets half way around the world before the truth can tie its shoelaces," as the saying goes.

This year, with election day on the unusually late date of November 8, we have November surprises.  One of the worst is this op-ed published in the Sacramento Bee under the byline of Linda Klein, this year's President of the American Bar Association.  The article urges people to vote no on Proposition 66.

What does a civil attorney from Georgia know about the California death penalty and the proposal to reform it, you might ask?  Nothing, it would seem.  This article is obviously ghost-written by anti-66 partisans.  It has one of the highest densities of false and misleading statements that I have ever seen in a newspaper opinion piece.

The article begins by touting how wonderful the ABA is.  "Our expertise gives us a unique perspective on some of the likely pitfalls and unintended consequences of Proposition 66."  Wouldn't an assessment of pitfalls and consequences require an objective analysis of what the proposition actually says?  Of course, but the ABA clearly did not bother to get one or to check out the opponents' claims with the proponents.

First, it would require attorneys with no death penalty experience to represent prisoners in their first appeal if qualified lawyers are not available. Imagine being required to visit a dermatologist after you have been diagnosed with lung cancer because no oncologist is available.
The implication that an attorney who is highly experienced in felony appeals but has not previously handled a capital case is unqualified in the same sense as a doctor from a completely different specialty is absurd.  The basic requirement under the present rule requires four years practice of law and seven completed felony appeals for the defense, including at least one murder case.  (Rule 8.605(d)(1)&(2).)  Proposition 66 does not change the qualification standards except to direct that prosecution-side experience be counted.  (Initiative § 18, amended  Govt. Code § 68665(b).)  The provision on requiring lawyers to step up when there is a backlog of appointments is specifically limited to those who "meet the qualifications for capital appeals."  (Initiative § 5, new  Penal Code § 1239.1(b).)  In addition, the California Supreme Court contracts with the California Appellate Project to provide advice to appointed lawyers in capital cases, and nothing in Proposition 66 changes that.

But if the present rule promulgated by the California Judicial Council is not enough to establish that prior capital experience is not essential for a lawyer to be qualified, there is another source that also says so.
One of the key reforms in Proposition 66 is a requirement that one of a death row inmate's challenges to his conviction and sentence be assigned to the original trial judge.  The challenge in question is called "habeas corpus" and is separate from the appeal on the trial record, which will continue to go to the state supreme court.

Today, the California Supreme Court, quoting an earlier Court of Appeal ruling, said, "When the judge assigned to examine and rule on the habeas corpus petition is the same judge who presided at the petitioner's criminal trial, 'there is no judge better suited for making a determination of the issues raised in [the] petitioner‟s petition' ...."  This statement appears in today's unanimous ruling in Maas v. Superior Court, S225109, a case concerning when a habeas corpus petitioner may challenge the assigned judge.

This confirms what we have been saying all along.  To decide a challenge to a conviction efficiently and fairly, the best judge to assign it to in nearly all cases is the one already familiar with the case by virtue of having presided over the trial.  Habeas corpus petitions rarely involve claims of judicial misconduct, but when they do Proposition 66 provides for assignment to a different judge for good cause.  This is just one of the common sense reforms that would be enacted by Proposition 66 to make the system work.  These reforms are opposed without valid reasons by people who simply do not want the system to work.

Poll Analysis Kerfuffle

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The things people get angry about ...

News Scan

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UT Officer Killed in Hit and Run, Three Suspects in Custody:  A Utah police officer died early Sunday after being struck by a fleeing vehicle that had been stolen by three suspects, who have been taken into custody.  Matt Canham of the Salt Lake Tribune reports that Officer Cody Brotherson, 25, a three-year veteran of the West Valley City police department, was struck and killed by the vehicle as he was attempting to lay down a set of tire spikes during a police chase that began when officers observed three individuals steal the car.  The chase lasted less than three minutes, ending when the stolen car was eventually run off the road and disabled.  The suspects, all of whom are under the age of 18, fled the scene but were later arrested.  It is not clear at this time whether the suspects intentionally hit Brotherson.  Brotherson is the first West Valley City officer killed in the line of duty since the city was established in 1980, and the second in Utah this year.

GA Officer Fatally Shot, Suspect Arrested:  A Georgia deputy was fatally shot and his partner critically wounded over the weekend after responding to a dispute between neighbors.  Fox News reports that Peach County Sgt. Patrick Sondron, 41, and his partner, Del Smallwood, responded to a call Sunday evening placed by the neighbors of Ralph Elrod.  Elrod had allegedly confronted his neighbors and threatened them with a gun because they were riding four-wheelers in the area.  When the deputies arrived, they made it just 10 to 15 yards from their patrol vehicles when Elrod opened fire.  The officer returned fire, shooting Elrod in the abdomen and injuring him.  He is currently in custody and will face charges of murder and three counts of aggravated assault.

Obama Shortens Sentences for 72 More Inmates:  President Obama last week granted clemency to an additional 72 federal inmates.  Josh Lederman of CNS News reports that Obama's final months in office have been marked by several rounds of commutations, including 98 two weeks ago.  Nearly all of the prisoners being granted clemency were convicted of drug-related offenses, some of them convicted of firearms charges in connection with drug crimes.  Obama has, in total, commuted the sentences of 944 people, 324 of whom were serving life sentences, which is more than the previous 11 presidents combined.  Many of the federal inmates will be freed in 2017 and 2018, after Obama has already left office.

How Voting Works

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The Onion explains it all.

Photo Finish Senate

In the race for control of the Senate, the elephant and the donkey are neck and neck in the home stretch.  As of 7:45 am PST, Nate Silver has the probability at 50.1 to 49.9.

There is something to be said for having the Senate and the White House in control of opposing parties.  We will get more moderate judges that way.  Yet due to a quirk in the U.S. Constitution, there is a decent chance that His Superfluous Majesty will be anything but superfluous for the next two years and will actually determine control the other way.

Interrogation Technique

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This video featuring Benedict Cumberbatch and Jimmy Fallon will probably not be adopted by the Commission on Police Officer Standards and Training, but it's worth watching anyway.
The California Department of Corrections today took a significant step toward putting into effect the barbiturate-only execution protocol it announced a year ago, meeting the one-year deadline.  Don Thompson has this report for AP.

CDCR sent its final product to the Office of Administrative Law, which reviews regulations for compliance with the state's Administrative Procedure Act.

Does this matter?  Yes, if neither Proposition 62 nor Proposition 66 passes next Tuesday.  The polls are mixed, but that is a possibility we can't rule out.  If either passes, the administrative process will be moot.  Either we will have no death penalty or the law will revert to what it was understood to be before 2007 -- that the APA does not apply to execution protocols.

CDCR was required to establish the new protocol as part of a settlement of a suit brought by Bradley Winchell and Kermit Alexander, family members of victims of murderers on death row.  The murderers' executions are being held up by the lack of a usable protocol, with reviews of the judgments having been completed years ago.  CJLF provided representation in that case.

News Scan

SCOTUS Halts AL Man's Execution:  The U.S. Supreme Court issued a last-minute stay Thursday evening, hours after the Alabama murderer was supposed to be executed, marking the seventh time he has avoided the death penalty.  Tracy Connor of NBC News reports that Tommy Arthur, 74, had argued that his sentencing violated the recent Supreme Court decision, Hurst v. Florida, and also challenged the Alabama's lethal injection protocol.  The stay was granted because four justices wanted additional time to consider Arthur's arguments.  Arthur was sentenced to death for the 1982 fatal shooting of a man whose wife he was having an affair with.  He committed the murder while out on work release from prison, where he was serving a life sentence for murdering his sister-in-law.

Soros Spends Millions to Defeat Arpaio:  A group working to defeat Maricopa County Sheriff Joe Arpaio in Arizona has received $2 million in contributions from George Soros.  Scott Bland of Politico reports that Maricopa Strong, the Soros-funded PAC, has spent a total of $2.9 million in the sheriff's race, funding mailers and TV ads attacking Arpaio and promoting Paul Penzone, the Democratic candidate.  Arpaio's campaign has criticized Soros, calling him a "far-left globalist" that has broken disclosure agreements and is attempting to buy an election.  Soros' efforts are just the latest of his major spending in local law enforcement campaigns over the past year, with his contributions against Arpaio his largest investment in a local race in 2016.  In 2015 and 2016, Soros also spent millions funding campaigns around the county to defeat local prosecutors that do not back his favored criminal justice reform measures.

SC Sex Offender Arrested After Missing Woman Found on his Property:  The case of a vanished South Carolina couple who have been missing for nearly three months heated up on Thursday when investigators discovered the woman alive, "chained up like a dog" in a metal storage container on the property of a convicted sex offender and kidnapper.  Fox News reports that Kala Brown, 30, was freed and her captor, Todd Kohlhepp was arrested.  Kohlhepp is a real estate agent and Brown worked for him.  He is a convicted sex offender listed on the state's registry and was also convicted of a 1987 kidnapping in Arizona.  Brown and her boyfriend Charlie Carver, 32, vanished in late August, and Carver remains missing.  Kohlhepp's overgrown property could hold clues, however, as the sheriff cautioned that as many as four bodies could be on the property.

Checks and Balances

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Jeffrey Jones reports for Gallup on an interesting poll.  Which party do Americans want to control Congress based on who wins the White House?

A majority (52-42) does not want a repeat of 2009-2010, when the Democrats had the White House and Congress.  That gave us, among other things, the Orwellian-named Affordable Care Act, rammed through Congress unexamined and without a single Republican vote, on the explicit premise that Congress had to pass it so we could find out what was in it.  Now we know, in spades.  The poll result is nearly evenly split if Trump actually pulls is off, with a very narrow plurality preferring the Republicans control Congress (48-46). 

Why the difference?  For one thing, Trump is not an orthodox conservative and would not be working hand-in-glove with the Republican leaders in Congress, so a stampede of ill-advised legislation is less likely.  For another, the bad legislation that needs fixing is nearly all Democrat-passed bills left over from the time when they had complete control, with Obamacare at the top of the list.  When you hear liberals rant, how often are they talking about bad (in their view) legislation that needs to be repealed or at least overhauled?  Not often. They rant about other things.  A period of full Republican control is needed to clean out the Augean stables, but there is no corresponding need on the other side.

The overall result is driven almost entirely by independents, with Republicans and Democrats wanting their party to control Congress regardless.  No surprise there.
Katy Murphy of Bay Area News Group has this story on the latest Field Poll.  Both of the death penalty propositions are ahead by single digits in this poll, though 10% remain undecided on 66.  The marijuana and gun control initiatives appear to be headed for approval.

Once again, Field gave its respondents only the confusing ballot language on 66.  That would accurately gauge the votes of people who will vote without consulting anything else and those who have already gotten information from other sources and made up their minds.  It would not, however, reflect the votes of people who have not yet made up their minds on the "down ballot" questions and will consult external sources before doing so.  Other polls that tell people in simple terms that 66 will speed up enforcement of the death penalty show it doing far better, as I noted earlier.

An EMP Solution to the Email Issue

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For those who, like Bernie Sanders, are sick of hearing about Hillary Clinton's emails, the Onion reports that her campaign has come up with a solution:

NEW YORK--In an effort to prepare for any new revelations that might emerge about her emails during her tenure as secretary of state, Democratic presidential nominee Hillary Clinton reportedly told her staff Tuesday to ready the launch of several electromagnetic pulses to disable all of the nation's electronic devices.

News Scan

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OH Execution Law Upheld:  A Cincinnati appeals court dismissed challenges to an Ohio law Wednesday that shields the identities of individuals involved in the execution process as well as the pharmacies that manufacture lethal injection drugs.  Jim Provance of the Toledo Blade reports that the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, upheld a lower court's ruling which dismissed claims made by several death row inmates, who argued that being denied information regarding the execution process under House Bill 663 is harmful and violates their free-speech and public record rights.  The appeals court determined that "[w]hile a deficient execution is a very serious matter, the existence of deficiencies in this case is only conjectural or hypothetical and is therefore not imminent for [legal standing] purposes."  The state's last execution was of Dennis McGuire in January 2014, who was put to death using a two-drug process that caused him to make choking noises and struggle against his restraints for 26 minutes before he died, according to witnesses.  After that, an informal moratorium on executions was put in place and is set to expire at the end of the year.  Ohio's next scheduled execution is of Ronald R. Phillips on Jan. 12, who will be put to death using a three-drug process consisting of midazolam, recuronium bromide and potassium chloride.

Appeals Court Won't Stop AL Man's Execution:  An appellate court affirmed a federal judge's ruling on Wednesday, refusing to stop the execution of an Alabama murderer scheduled to die Thursday evening.  The AP reports that the 11th U.S. Circuit Court of Appeals, in a split decision, dismissed the latest legal challenge made by Tommy Arthur, who argued that the state's death penalty procedure is unconstitutional.  Arthur, who has won reprieves on six prior occasions, claimed that a federal judge prematurely dismissed his lethal injection challenge when a U.S. Supreme Court requirement for inmates to offer an alternative execution method was misapplied.  Arthur suggested a firing squad and another lethal injection drug, but the federal judge dismissed the challenge, ruling that Arthur had not identified a drug source and a firing squad is not a permissible method under state law.  Arthur was convicted of the 1982 murder of Troy Wicker, whom Arthur shot as he slept in his home.  Arthur was having and affair of Wicker's wife and killed her husband when she paid him $10,000.  At the time of the murder, Arthur was in a prison-release program after being convicted of the 1977 murder of his sister-in-law.

Worst of the Worst Illegals Slipping Through the Cracks:  The worst of the worst illegal immigrants are slipping through immigration loopholes, proving that President Obama's Priority Enforcement Program (PEP) is a complete failure.  Jonathan Thompson and Leon Wilmot have this piece in the Washington Examiner, reporting that in 2013, over 36,000 illegal immigrants convicted of felonies were released by U.S. Immigration and Customs Enforcement (ICE) while their deportation proceedings were still pending.  Among those immigrants were 193 convicted murderers, 426 kidnappers and 426 individuals convicted of felony sexual assault.  Under the Obama administration's PEP, violent and dangerous illegal aliens scheduled for deportation are released from federal detention after serving their sentences without local law enforcement's knowledge.  What's more, the executive branch has ordered ICE to stand down, tying the hands of federal agents on the ground.  Thompson and Wilmot say that Americans of all stripes and political affiliations agree that there is a necessity to swiftly deport the worst of the worst criminals and should demand reform of the Priority Enforcement Program.

Justice for the littlest victims

Cameron Morrison was only 19 months old, but had suffered more catastrophic injuries than any person should ever ensure in an entire lifetime.  Cameron's mother's boyfriend, Darnell Deangelo Dorsey, was babysitting Cameron and his half-brother while their mother was at the gym.  When she returned home and found Cameron unconscious, Dorsey claimed that Cameron had "possibly choked on some food" and he had "shook and slapped the boy in an attempt to revive him."  Cameron died after being taken off of life support a few days later as a result of a severe traumatic brain injury due to blunt force trauma.  At the time of his death, Cameron's brain was so swollen there was "virtually no space between the brain and the skull."  Scans also showed Cameron had 18 rib fractures in various stages of healing, a lacerated liver, subdural hematoma, retinal hemorrhages, lung contusions, and hemorrhaging to his adrenal glands.  All the experts agreed that Cameron did not choke on food.  But rather had suffered blunt force trauma to his head and body that was inflicted while he was in Dorsey's care.

Yesterday, after an 8-week trial, Dorsey, who had a prior violent "strike" offense, was convicted by a jury of killing Cameron.  Yolo County Deputy District Attorney Michelle Serafin said, "At great sacrifice, the jurors dedicated eight weeks to finding justice for Cameron. Overwhelming evidence was presented to the jury thanks to the thorough investigation of the medical professionals at UC Davis Medical Center and the Davis Police Department. The hard work and dedication of the jurors, the doctors and the police officers is deeply appreciated by Cameron's family."

Dorsey's sentencing hearing is scheduled for December 2nd where he faces the possibility of 50 years to life in state prison.  A press release from the Yolo County District Attorney's Office can be found here.

LifeZette has an eye-opening piece on crime and law enforcement, two issues that justifiably have entered the election debate.  Its article is ominously but accurately titled, "America in Decline, Part IV: Crime."  It features short essays by Steve Cook, a veteran federal prosecutor and President of the National Association of Assistant US Attorneys; David Clarke, Sheriff of Milwaukee County, Wisconsin; and yours truly, holding forth from (although not in any way representing) Georgetown Law.

Steve's and David's contributions are definitely worth your time.  Whether mine is is not for me to say, but, for those interested, I include it after the break.  Thank goodness LifeZette at last gives us a right-of-center source in Washington, DC to tell us the things we're not going to read in Politico or hear on MSNBC.
Marcos Breton has this column in the Sacramento Bee.

After 30 years as a journalist in California, I've come to believe that my industry can unintentionally distort the public's understanding of the death penalty.
But he doesn't mean the usual kind of media bias.

No, I'm referring to distortion by omission in many media accounts of death penalty cases. As journalists, we often won't describe the most gruesome details because they can violate the rules of decent public discourse.

We are mindful of subscribers reading the paper at their breakfast tables or online at their computers at work. So it's unlikely we're going to tell you the excruciating ways in which some people on California's death row tortured their victims. It's unlikely we're going to tell you exactly how they derived emotional or sexual satisfaction from playing god over defenseless children who begged for mercy before being killed.

Golden State Poll

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The Hoover Institution at Stanford University has another poll from California, done by YouGov.

Conducted between Oct. 4 and 14, the survey's sample is 1,250 likely voters in the upcoming general election in California. The full results of the survey, which has a margin of error of +/-3.28 percent for the full weighted sample, can be found here.
This poll finds the repeal initiative only slightly behind and within the margin of error, 42-43.

Like the Field Poll noted last month, this poll described Proposition 66 only in the dry, neutral terms of the ballot label, making no mention that it will make enforcement of the death penalty more effective and more timely.   With this similarly uninformative wording, they get a similar result:  38% yes, 24% no, and 38% undecided.  That is a few percent more for yes and less for undecided than a month ago, but it still indicates that lack of information is the greatest threat to Proposition 66.

In contrast, the poll by the Institute for Social Research at Sacramento State noted less than two weeks ago, which used the words "speed up," came in at 51-20-29 on Prop. 66.

A few notes on the crosstabs ...

News Scan

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Two IA Police Officers Killed, Suspect in Custody:  Two Iowa police officers were fatally shot early Wednesday in what appears to be ambush-style attacks, and a suspect is in custody.  Jason Hanna and Max Blau of CNN report that Des Moines police Sgt. Anthony Beminio and Urbandale police Officer Justin Martin were found two miles apart, both shot while sitting in their squad vehicles near intersections. Scott Michael Green, 46, was named a suspect was detained, though detectives didn't elaborate further.  The shootings come eight months after two other Des Moines officers were killed when a wrong-way driver slammed head-on into their vehicle.  They also come just four months after five Dallas police officers were ambushed and killed by a sniper during a protest and three Baton Rouge officers were slain in a surprise attack.  Wednesday's shootings bring the number of police officers fatally shot in the U.S. and Puerto Rico in 2016 to 51, the highest one-year total since 2011 when 73 officers were shot dead, according to the National Law Enforcement Officers Memorial Fund.

La. Man Sentenced to Death:  A jury in Lafourche Parish, La., sentenced someone to death Tuesday for the first time in 40 years.  Bridget Mire of the Daily Comet reports that the unanimous decision was reached three days after the jurors unanimously sentenced David Brown, 38, to first-degree murder for killing Jacquelin Nieves, 29, and her daughters Gabriela, 7, and Izabela, 1, almost four years ago to the date.  On Nov. 4, 2012, Brown stabbed the young mother and her daughters, and also sexually assaulted her and her eldest daughter, before setting the family's apartment on fire.  Assistant District Attorney Joe Soignet said a death sentence was "the only appropriate sentence for this man."  The last time a jury sent someone to death row in the county was in 1978, when David Dene Martin was sentenced to death for shooting and killing his wife's lover and three other people.  He was executed in 1985.

AR Officer Injured During Arrest, Suspect Arrested:  A North Little Rock, Ark., police officer sustained injuries Tuesday night while attempting to arrest a fleeing suspect.  KARK reports that Ranthony Stephenson, 25, was partially unclothed and harassing children at a bus stop when officers appeared on the scene.  Stephenson fled on foot before managing to gain control of a patrol car, and one of the pursuing officers sustained injuries to the head and hip while attempting to wrest control of the vehicle.  Stephenson will be charged with second-degree battery, aggravated assault, resisting arrest, disorderly conduct, fleeing and theft of property.

CA Taxi Driver Convicted of Terrorism Repatriated:  U.S. Immigration and Customs Enforcement (ICE) this week returned to his home country a former California taxi driver who had been convicted of providing material support to Somalian terrorist groups.  As reported on ICE's official website, Ahmed Nasir Tahlil Mohamud, 41, who resided in Anaheim, was repatriated to Mogadishu on Tuesday due to a prior conviction for providing material support to al-Shabaab, a militia group that engages in suicide bombings, targets civilians for assassination and uses improvised explosive devices.  Nationwide, ICE repatriated 351 individuals classified as high-profile removals in FY 2015.  Among those repatriated, 274 were wanted for crimes committed overseas, often of a very serious or violent nature, 20 were classified as human rights violators and 54 were considered national security threats.

Why Most People Want A Death Penalty

As someone who has debated death penalty opponents many times, I have gotten used to their tactic of drawing attention away from the actual crimes that jurors determined required a death sentence.  The cost, the possibility of someone actually innocent of the murder being executed, the deterrence argument, and even the rare cases where the mother of a victim chooses to reconcile with the murderer, are diversions from the moral question of what constitutes justice for the worst kind of killer.  Time and again, when most people hear the details about a particularly gruesome murder, they tell pollsters that the death penalty is the appropriate punishment.  Because California voters will decide next week whether to repeal the death penalty or adopt reforms to streamline the current process, I am presenting a California case after the break.

Cal DP Repeal Still Alive and Dying

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"Still alive and dying" is a running gag in Marty Feldman's Last Remake of Beau Geste.

SurveyUSA, a poll we have mentioned several times, has a new California poll, finding that Proposition 62, the death penalty repeal initiative, is losing 39-50.  That is a smaller margin than last time, but still wide.

As before, the poll did not ask about Proposition 66, the "make it work" initiative.
In addition to Kent's and Bill's cogent arguments about the cost of the death penalty, let me add another:  Justice is worth spending money on.   

We have Fourth, Fifth and Sixth Amendment rights not because they are efficient, expeditious or easy but because our forefathers recognized that justice isn't economical.  We could easily dispense with the cost of the criminal justice system and just civilly commitment people who are prone to violence and crime (abrogating Foucha v. Louisiana in the process, of course).   

But we don't because we understand that such a system would be unjust.  

Justice for society and victims is worth spending money on just as it is worth spending resources for the accused.  
There is at least one additional aspect of the cost argument against the death penalty I should mention.  It's related to the first three, but merits separate notation.

The argument is a phony from the getgo.  

Those making it are attempting only to appeal to gullible conservatives.  Left to their own devices in any other context in government spending, they could care less. Where, except with respect to the death penalty and punishment costs, have they shown even quasi-serious concern with frugality? Health care?  Social Security? Income maintenance? Environmental subsidies? And on the criminal side:  Rehab? Re-entry?  Psychological counseling? Life skills?  Which one of those programs (the first three of which exponentially outstrip the costs of the death penalty) have they proposed to cut back to any degree whatever?

Correct.  None.  To the contrary, liberals overwhelmingly support more spending for each, see, e.g., this so-called "report" proposing more than $200 billion in new criminal justice spending.

Abolitionists have gone the "frugality" route in a display of hypocrisy that would make Anthony Wiener blush.  They don't give a hoot about savings; they just want to pretend to (until November 9). 
Having dealt with the defense bar and its allies in advocacy groups and think tanks for over 40 years, I can attest that there is yet a third succinctly stated reason that the cost argument against the death penalty is tripe.

Any money the state saves by ending the maintenance of death row and the litigation entailed in capital cases will be sucked up  --  every dime of it  --  into the decades-long maintenance of killers serving LWOP, together with the litigation against LWOP as  --  guess what!  --  too expensive.  That litigation will be undertaken by the many of the same people and groups who are now telling us, with their fingers crossed only half-hidden behind their backs, that the death penalty costs too much.

The coming tidal wave of anti-LWOP advocacy and law suits once the death penalty is repealed has already shown itself in too many articles to list.  For a sample, read any three months' worth of Doug Berman's Sentencing Law and Policy.

Death penalty opponents are simply not telling the truth about what they actually plan to do with the LWOP they are now trumpeting as the alternative.

Kent is too generous (although as ever compelling) in his post about the cost argument against the death penalty.  Let me repeat the gist of my post about this subject roughly three months ago.  The cost argument is not merely mistaken; it's absurd:

One of the leading arguments used by death penalty opponents is that capital punishment costs too much.

Let's put to one side the fact that it costs so much mostly because those self-same opponents have spent decades larding it with manufactured procedural delays and gimmicks having nothing to do with either basic fairness or factual guilt.

Aren't the following two sentences a complete answer to the cost argument?

Expense is a reason to be selective and use the death penalty sparingly.  It is no reason intentionally to blind ourselves to unknown future facts, and make capital punishment legally unavailable for any jury, ever.
Jazmine Ulloa that this post on the LA Times site reviewing the muddled debate over costs of the death penalty.  Experts disagree over how much money could be saved by repealing and how much could be saved by reforming.  No one disagrees that the status quo wastes money. 

I don't much care for the headline, which asks, "Will ending the death penalty save California more money than speeding up executions?"  (Headlines are generally written by editors, not the reporters who write the text of the story.)  Whether the reform initiative would save more than the repeal initiative is not the point.  The point is that the notion that there will be huge savings from repeal, freeing up large sums for other purposes, is a mirage.  The guy pictured holding a sign that says, "The death penalty is killing California's budget" is seriously misinformed.  The claim that California spent $5 billion dollars for 13 executions was found "mostly false" by PolitiFact, which is certainly no friend to conservative causes.

The net cost difference between repeal and reform, whichever way it goes, is a drop in California's enormous budget bucket.  Cost is no reason to deny justice in the very worst murder cases.

The choice between 62 and 66 should depend on the voter's view of justice.  The proponents of 62 like to talk up inflated numbers on cost because they know they can't win on justice.

How Not to Take a Deposition

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I rarely find much of interest in the California Bar Journal, but this entry in the attorney discipline section caught my eye (emphasis added):

DOUGLAS JAMES CRAWFORD [#202274], 53, was stripped of his law license Sept. 23, 2016, after he walked out of the courtroom during his disciplinary trial and did not return. Crawford's default was entered as a result and because he did not move to have the default set aside, the State Bar filed a petition requesting his disbarment.

The State Bar Court found Crawford culpable of four of the eight charges against him. Crawford engaged in conduct that involved moral turpitude by taking pepper spray and a stun gun to a deposition, threatening to use them on opposing counsel if the deposition "got out of hand" and discharging the stun gun while pointing it toward opposing counsel. Crawford was representing himself and his mother in an action against JPMorgan Chase Bank at the time, and "filed an opposition that was openly contemptuous of the trial court," according to an unpublished opinion by the 2nd District Court of Appeal.
Assault with a stun gun is what is known as a "wobbler" in California, punishable as either a misdemeanor or a felony in the discretion of the court.  See Penal Code § 244.5.

News Scan

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MA Murderer's Second Death Penalty Trial Begins:  Opening statements begin Tuesday in the death penalty trial of a Massachusetts man who pleaded guilty to murdering three people in a weeklong crime spree 15 years ago that spanned two states.  Scott Malone of Reuters reports that Gary Lee Sampson, 56, admitted to killing two men in Massachusetts who picked him up while hitchhiking in two separate incidents and another person in New Hampshire who was taking care of a home he had broken into.  Sampson was originally sentenced to death for his crimes in 2004, but the sentence was overturned in 2011 after a judge found a juror had lied about her history with domestic violence.  Sampson's trial is the second death penalty trial in the state in two years; last year, Boston Marathon bomber Dzhokhar Tsarnaev was sentenced to death.  Because Sampson has already pleaded guilty, the trial will focus solely on whether he will face the death penalty or life in prison without parole.  The death penalty is banned in Massachusetts but Sampson, like Tsarnaev, was convicted of murder under federal law.  Since 1988, 75 people have been sentenced to death on federal charges, and three of them have been executed.

WA Mother Charged with Injecting Children with Heroin:  A Washington state mother was formally charged and jailed on Monday for injecting her children with heroin to get them to sleep.  Fox News reports that Child Protective Services (CPS) removed 24-year-old Ashlee Hutt's three children -- ages six, four and two -- from her Spanaway home that she shared with her boyfriend, Matt McIver, 25, in November 2015.  The home was reportedly riddled with heroin, needles and rat droppings.  The youngest child's body showed signs of heroin injection, and the eldest child confirmed that Hutt and McIver mixed a white powder with water and injected it with a needle into their bodies, calling it "feel-good medicine."  The six-year-old also said he was choked by McIver.  Hutt and McIver face three counts each of unlawful delivery of a controlled substance to a minor, second-degree criminal mistreatment and second-degree child assault.  The charges come on the same day that the Yale School of Medicine issued a report that found the number of kids who received emergency treatment for opioid drug overdoses, both accidental and deliberate, more than doubled between 1997 and 2012, the greatest increase being among children between the ages of one and four.

Manson Follower Denied Parole:  Parole was denied by a California review board last week for a follower of Charles Manson, his self-described right-hand man in several brutal killings across Los Angeles.  Matt Hamilton of the LA Times reports that Charles "Tex" Watson, 70, was denied parole late Thursday for his role in the 1969 massacre of five people at the home of director Roman Polanski, including eight-months pregnant actress Sharon Tate, and the killings of Rosemary and Leno LaBianca.  Watson was sentenced to die in San Quentin's gas chamber but had his sentence commuted to life in prison in 1973 after the death penalty was ruled unconstitutional by the state Supreme Court.  At his 2011 parole hearing, he was described as "the leader of the rampage at Polanski's home" and "the main hit man" in the family.  The parole commissioners, while acknowledging Watson's efforts to reform, ultimately found him to still pose a danger to society, citing the grisly nature of the crimes and their indelible effect on the nation.  Last week's decision marks the 17th time Watson has been denied parole.  He will be eligible for parole again in five years.

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