December 2016 Archives

Fatal shootings of police officers increased in 2016 to the highest level since 2011. I don't know all the reasons for this.  Certainly the overall murder increase and the surge in the deadly heroin trade are part of the mix.

Mall violence, usually caused by roving gangs of teenagers, has been in the headlines over the holidays.  in most of the news stories on this issue, law enforcement and security officials speculated that social media had contributed to these incidents, presumably by allowing perpetrators to quickly alert other teens where and when to gather and riot.  Manhattan Institute scholar Heather MacDonald  suggests that a larger contributing factor is the Obama Administration's years of pressuring schools to stop suspending unruly students in order to prevent racist teachers from disproportionately disciplining black students.  This practice, called "restorative justice", seems to have caused significant increases in school violence in districts which have fully embraced it.  With little or no discipline at home or at school, who is surprised that teen mobs are beating people and damaging property at shopping malls?   

The California Supreme Court today decided People v. Corpening, S228258, involving the problem of a single act violating more than one statute:

A defendant may not be punished more than once for a single physical act that violates multiple provisions of the Penal Code. The charging document in this case identified the same forceful taking of a vehicle as the physical act completing the actus reus for both robbery and carjacking. Where the same physical act accomplishes the actus reus requirement for more than one crime, that single act cannot give rise to multiple punishment. Because that is precisely what happened here, Corpening's one-year robbery sentence must be stayed.

Military May Execute Murderer Soon:  A federal judge has lifted the stay of execution for an Army cook convicted of rape and murder in 1988.  Ryan Browne of CNN reports that Ronald Gray was sentenced to death by a military court for raping and murdering two women.  He had pleaded guilty in civilian court to two other killings and five rapes.  With the stay lifted, an execution date for Gray may be set within the next 30 days.  If Gray's sentence is carried out, it would be the first military execution since 1961. 

Over 800,000 Illegals Get CA Driver's LIcenses:   Tatiana Sanchez of the San Jose Mercury News reports that in the two years since Governor Jerry Brown signed a law (AB 60) allowing illegal aliens to obtain driver's licenses 806,000 have been issued.  Supporters of this law argue that people in the country illegally have learned to drive more safely while obtaining licenses and that they can now drive without fearing the police.  Some fear that under the incoming Trump Administration, the information made available to law enforcement through the licensing process may be used to deport illegals.  This is unlikely because, according to the California DMV, the information law enforcement agencies can obtain  -- such as name, gender/description, address, date of birth and driver license number -- doesn't indicate a person's immigration status or whether they received licenses under AB60.

Maryland Cop Shot:  Fox News reports that a Maryland sheriff's deputy was severely wounded in a shootout this morning.  Deputy Warren Hogan had transported a female from headquarters to her home to pick up clothing after a domestic violence incident, when a yet unidentified man fired on him with a shotgun.  The injured deputy returned fire, fatally wounding the shooter.  The deputy was life-flighted to a hospital in critical condition.  

 

Every day, I count my blessings that Jeff Sessions, the Senate's leading battler against "criminal justice reform," will be our next Attorney General.  But when I read today's Washington Post story, I counted them with extra vigor.

Obama Seeks to "Punish" Russia: The Obama administration is close to announcing a number of measures it intends to take in order to "punish" Russia for its "interference" in the 2016 presidential election. According to Ellen Nakashima at the Washington Post, the administration is currently in the process of finalizing the measures to be taken which include economic sanctions, diplomatic censure, and possible covert operations which include cyber-operations. An announcement regarding the public elements of the response may be released this week.

Chicago Gun-Deaths Rival Iraq War: In the past few years, Chicago Illinois has gained considerable notoriety as a hub of gun violence despite it highly regulated gun-control policies. Awr Hawkins of Breitbart News reports just under 4,230 Americans lost their lives in the Iraq War during George W. Bush's time in office. Nearly that many-3,903- have died in Chicago alone since Barack Obama took office in 2009. Violent crime seems to be a persistent problem for the city.

Ed Royce, chairman of the House Foreign Affairs Committee has this op-ed in the WSJ with the above title.

With less than a month remaining in office, President Obama is racing to free 19 more detainees from the terrorist prison at Guantanamo Bay. If history is any guide, this means that dangerous jihadists will be released to countries ill-equipped to handle them.

While many wondered whether Mr. Obama would fulfill his 2008 campaign promise to close Gitmo by breaking a bipartisan law barring him from bringing detainees to the U.S., the House Foreign Affairs Committee has remained focused on the president's push to empty out the prison through reckless transfers to other countries.

The correct path to emptying Gitmo seems rather obvious.  The lesser detainees have already been released or transferred.  The major ones, for the most part, have been in custody long enough as to no longer have value for interrogation for intelligence purposes.  What do we do with them, if we don't want to keep them in Gitmo or transfer them to foreign governments?

They should not be on American soil; they should be in it.  Why is KSM still alive?

The military tribunals were set up to be swift.  Unlike the independent Article III judiciary, they are under the command of the commander-in-chief.  So order them to get it done.

In the conventional sense, absolutely.  Very few pollsters or pundits predicted it.  I sure didn't.  And in a sense, the polls were close to correct:  Ms. Clinton won the national plurality by nearly 2.9 million votes.

Annual "Death Penalty In Decline" Story:  Over the Christmas weekend newspapers across the country published stories reporting that the nation is abandoning capital punishment. This selection is authored by Sam Hananel of the Associated Press. The stories,  Informed by the annual December report from the Death Penalty Information Center (DPIC), indicate that only 30 people in the U.S. were sentenced to death in 2016, down from 49 last year. DPIC Executive Director Robert Dunham  believes that the drop suggests that the country is going through "a major political climate change" regarding the death penalty. But in states where the death penalty was on the ballot, political efforts to abolish it failed. Nebraska voters chose to reinstate the death penalty by a margin of 61%-39%. Oklahoma voters adopted a measure to protect its death penalty from constitutional challenges by a margin of 88%-34% and in California, voters in the nation's largest and most liberal state voted for the second time in four years to keep the death penalty, with the 2016 initiative to abolish failing by an 8-point margin compared to a 4-point margin for a similar initiative in 2012.

Violence Breaks Out at Shopping Malls: J.J. Gallagher, Joshua Hoyos & Michael Edison Hayden of ABC News report that fights broke out Monday at shopping malls in at least nine states. Police suspect that social media may have contributed in fights at malls in Connecticut, Ohio, Illinois, Colorado, Texas, New York, New Jersey, North Carolina, and Tennessee which resulted in police responses, arrests, and in some cases evacuation of malls.

DC Woman's Body Found: A popular actress and DC area yoga instructor has been found and homicide is suspected. Peter Hermann of the Washington Post reports that Tricia McCauley, 46, went missing on Christmas Day as she was driving to a friend's home for a holiday dinner.  Police later spotted McCauley's car driven by someone else at several locations in the DC area and eventually tracked it to a CVS store.  An unidentified suspect was arrested in the store and later, the woman's body was found in her car.  Police reported that the body had blunt-force trama.  

When pro-criminal groups thought (or fooled themselves into thinking) that they had a chance for federal sentencing "reform," what they said they envisioned was sentencing reduction for "low level, non-violent" offenders.  If you've read that phrase once, you've read it a million times.  

The [Center's] report also recommends a reduction in sentences for major crimes that account for a majority of the prison population -- aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.)  If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.

Under a saner system, the report says, nearly 40 percent of the country's inmate population could be released from prison without jeopardizing public safety. 

National Review has this story by the inimitable Heather MacDonald.  It starts:

CNN is making a desperate pitch to further inflame the ideological war on cops while it still has a sympathetic ear in the White House. The CNN website is promoting a laughably incomplete study of police use of fatal force under the headline "Black men nearly 3 times as likely to die from police use of force, study says." Utterly ignored in the study and in CNN's write-up is any mention of violent-crime rates, which vary enormously by race and which predict officer use of force. Absent such a crime benchmark, analysis of police actions using population data alone, as this latest study has done, is worse than useless; wielded as a bludgeon in the current anti-cop crusade, it is dangerously irresponsible. 

Katie Mettler reports for the WaPo:

When the historic black church in Greenville, Miss., first burned last month, many, including the city mayor, speculated that the intentionally lit fire was a hate crime.

It was a particularly tense time in America, just a week before the bitterly divisive 2016 presidential election came to a close. Then-candidate and now President-elect Donald Trump campaigned on building a wall at the U.S.-Mexico border and banning Muslims from the United States -- or, at the very least, aggressively vetting Muslims seeking entry to the country. A prominent newspaper of the Ku Klux Klan offered a de facto endorsement of Trump and he secured the support of the KKK's former grand wizard, David Duke.

"Secured" is an exceptionally poor choice of words there.  It implies that Trump sought this endorsement when the truth is nothing of the sort. But let's go on.

Among African Americans, Trump polled with low support.

All this led church and community leaders to believe that, when they found the words "Vote Trump" spray-painted on the outside of the charred, 111-year-old Hopewell Missionary Baptist Church, the fire was a political act.

Turns out it wasn't.

One of the most corrosive false narratives advanced in recent years is the fiction that racist white police officers indiscriminately kill black males.   While study after study have concluded that the disparity in police shootings among different racial groups is relative to the differing levels of criminal activity among racial groups, the narrative continues. 

It should surprise nobody that a Monday "news" story on CNN bolstered the racist police narrative, citing a report from The American Journal of Public Health which found that nearly three times as many black males died during encounters with police than males of other races.  The "disturbing data"  were raw numbers comparing deaths by race during  "legal interventions."  These numbers are correct, but without consideration of the differences in violent crimes among racial groups, no legitimate conclusion about racial bias can be made.  

Manhattan Institute scholar Heather MacDonald has this piece in the National Review providing a litany of reasons why the promotion of the racist police lie by CNN and others is not only evidence of stupidity, but also the worse kind of racism.   News stories fueling racial hated against police preserves the urban criminal war zones where six times as many blacks, including women and children, are murdered than the members of other races and almost all of the murderers are other blacks.  This false narrative also provides black criminals with a justification for assassinating cops.     

The Association for Los Angeles Deputy Sheriffs board has this post:

President Barack Obama made one of the final moves of his presidency appointing Debo Adegbile, the lawyer for convicted cop killer Mumia Abu-Jamal, to a six-year term on the U.S. Civil Rights Commission. In 2014, President Obama's attempt to appoint Adegbile to head the Justice Department's Civil Rights Division was rejected by the United States Senate, with eight Democratic Senators among those opposing his confirmation.

The resurgence of violent crime in America after falling for more than 20 years was an important issue in the campaign.  Ms. Clinton pointed out that crime remains near historic lows; Donald Trump said crime was increasing at an alarming pace.

California Supreme Court Stalls Prop 66: The California Supreme court has issued a brief, unexplained order staying the implementation of Proposition 66, which was adopted by state voters on November 8. . As reported by the LA Times, Proposition 66 would change how death penalty appeals are handled, appointing more lawyers to take cases, putting the initial habeas corpus review before trial court judges and setting a five-year deadline for appeals to be heard. Generally speaking, it can take more than 5 years just to have an attorney appointed to a capital appeals case, and the exhaustive process of appeals can span more than 25 years. Opponents of the legislation argue that this proposition would limit the ability to make proper appeals while proponents of the legislation have labeled the suit a frivolous stall tactic.

Sac Sheriff Expedites Concealed Carry Permits: Sacramento County Sheriff Scott Jones, has recently issued a statement regarding his intention to institute a new process which will reduce the amount of time and effort that is required for a citizen to attain a concealed carry permit.  Phillip Reese and Nashelly Chavez at the Sacramento Bee report that Sheriff Jones ran his campaign on the promise that he would make it easier for citizens to attain concealed carry permits, a promise which he has kept. The current number of citizens in Sacramento County with a concealed carry permit is about 8000, up from 350 in 2010. With Jones's proposed changes, we are sure to see the number of armed citizens in Sacramento County rise in the coming years.

As has become an unfortunate habit with the Left, the snarl "RACIST" tends to begin the debate.  It's designed, so I have found, to end the debate as well, because the idea is not to exchange views but to bully the opponent into silence. White privilege, reparations, shaming and all that.

As crime rises in may parts of the country, particularly in urban centers and states invested heavily in alternative sentencing, the call to end so called "mass incarceration" is still a high priority for the left as evidenced by this OpEd in the Sacramento Bee by Foon Rhee.  The author praises the outgoing President's embrace of sentencing reform and California's aggressive alternative sentencing policies, but he fears that that the incoming President will reverse this trend.  He suggests that on top of the tens of thousands of criminals already released early under these policies another 364,000 state and federal non-violent and drug offenders can be released without threatening public safety. 

The next day, a story buried in the same paper reported that drug overdose deaths have increased by 33% over the last five years, according to the CDC. A more thorough story on this issue was written by Michael Casey of CNS news.  A 2015 report by the Urban Institute found that 99% of drug offenders in federal prison were convicted of trafficking.  Anyone familiar with criminal trials understands that virtually all of the dealers got a plea bargain. 

In California, as a result of Proposition 47, which converted felony drug possession to a misdemeanor, drug arrests are down dramatically.  Under the state's Realignment law, most drug dealers do not go to prison anymore and users, if police even bother to arrest them, are cited and punished with a few hours in a local jail as reported in the Desert Sun. 

There has been much debate on this blog regarding whether drug dealers should be considered violent criminals.   Assessing the hundreds of thousands of lives destroyed by the illegal drugs they sell, I would say yes.  Mr. Rhee and others who think like him would likely disagree, as I am sure that they would be quick to deny any connection between the mass release of federal and state drug dealers and the increase in overdose deaths. 

More Pardons from President Obama:  The President pardoned 78 criminals and shortened the sentences of another 153 on Monday, which was the most pardons by any President on a single day.  Vera Bergengruen of the Associated Press reports that over his two terms, the President has issued more commutations and pardons that the past 11 presidents combined.  Among the criminals given clemency on Monday were 54 serving life sentences. 

I know next to nothing about Secretary of State-designate Rex Tillerson, but I found encouraging this story about his jury service in a case concerning  sexual assault on a child.  The short article is written by a person who says he did not vote for Trump.

Santa Clara County Judge Aaron Persky paid careful attention to defense submissions in the Stanford rape case this past spring, including, famously, the one arguing that the defendant, varsity swimmer Brock Turner, should not be forced to pay a steep price for merely "20 minutes of action."

Michael Moore is an obnoxious jerk, but most of what he does is within the bounds that we must tolerate as the price of freedom of speech.  Yesterday, though, he may have stepped over the line in a Facebook post addressed to Republican electors.

But some states have made it "illegal" for you to vote any other way than for Trump. If you don't vote for him, your state will fine you $1,000. So here's my offer to you: I obviously can't and won't give you money to vote tomorrow, but if you do vote your conscience and you are punished for it, I will personally step up pay your fine which is my legal right to do.

Stepping up and paying someone's fine might be a legal right, but is promising to do so in order to influence that person's vote a legal right?  I think it's a legal wrong.

Woman Arrested in Connection to Police Shooting: A woman has been taken into custody in connection with last week's shooting of a Tennessee police officer. Juan Buitrago at the Tennessean reports Kathleen Daly, 26, surrendered herself to police Sunday night for her involvement with the shooting of Officer Terrence McBride on December 13th. Officer McBride and his partner were responding to a call about a man with an outstanding warrant who spoke of committing a robbery. While securing the area, Paul Hardesty, a 43-year-old parolee, opened fire and injured the officer. Police say that on arrival, Kathleen Daly provided officers with a fake identity including name, and social security number and stated that she was alone in the room, making her culpable in the shooting.

Obama Refuses to Deport Criminal Illegal Immigrants: Recent reports reveal some shocking numbers regarding the frequency with which criminals who are in this country illegally are flying under the radar under Obama's immigration policy. Warner Todd Huston at Breitbart News reports that recent reports reveal that an estimated 820,000 illegal immigrants in this country are currently avoiding deportation under the policies of the Obama administration regardless of their criminal history. Many of these immigrants have been convicted of serious crimes such as murder, sexual assault, and various drug offenses.

How Trump can end the war on cops:   Manhattan Institute scholar Heather MacDonald has this piece in the Wall Street Journal outlining how incoming President Donald Trump can turn around the ongoing assault on police officers inspired by the fake news narrative that white officers are indiscriminately shooting blacks.  First on the to do list is to put an end to the promotion of this thoroughly disproved fiction by the White House and the Department of Justice.  Not a WSJ subscriber?  Goggle "Trump can end the war on cops, Heather MacDonald" and you should get a working link.

By CJLF Intern Dillon Harrington: 

Chances are that at some point over the last few weeks you have heard talk of fake news and how it was used as a tool for the Republican Party this election cycle. Claims of Russian hackers and illegitimate elections fill headlines across the nation, but this raises the question, why is it that claims of fake news emerge only now when the information no longer serves the liberal narrative?

What about when the "hands up don't shoot" headline synonymous with the shooting of Michael Brown in Ferguson inspired hundreds of thousands of people to take up the mantle of the Black Lives Matter movement, touting the misguided belief that African American citizens were under constant threat of murder and abuse at the hands of the police? When the Grand Jury decided that the shooting was a lawful one, and that based on the evidence in the case, the story that Michael Brown was shot with his hands in the air in surrender was a falsehood, the left was silent. The entirety of the BLM movement which has incited fear and hate that has often erupted into violence, was based on this bit of fiction and yet we hear no dissenting opinions from the left.

Another Officer Shot: A police officer was shot in the line of duty Thursday night in Mt. Vernon Washington. Michael Setsuda at Fox News reports that a standoff with a suspected gunman Thursday night ended with an officer in critical condition with a gunshot wound to the head. The officer was reportedly responding to a call regarding a shooting in Mt. Vernon. According to the Seattle Times, the injured officer remains in critical condition following emergency surgery. Following a prolonged standoff with police, the suspect in the shooting has been apprehended.

Ohio Execution Moratorium Coming to a Close:  Next month, at the top of 2017, Ohio plans to resume executions of inmates that have been siting on death row in the state. Mariel Padilla at Patch reports that the beginning of 2017 will mark the end of Ohio's three-year moratorium on the death penalty initiated after a botched execution in January of 2014.  Twenty-six condemned murderers have received execution dates through to the year 2019.

The pro-defendant Marshall Project has published a piece setting forth four reasons that mass sentencing reduction for drug traffickers  --  more often palmed off as sentencing "reform"  --  might do better in this Congress than the last one.

Hate Crime Accuser Charged:   A Muslim woman who claimed that three men screaming "Donald Trump" attacked her on a New York subway, has been charged with making a false police report.  Anthony M. DeStefano of Newsday reports that a source with the NYPD has confirmed that Yasmin Seweid admitted that she was lying about the December 1 attack and that she has signed a statement admitting that she had fabricated the incident.  This comes as Andrea Nobel of the Washington Times reports that outgoing Attorney General Loretta Lynch visited a mosque Monday to decry a spike in hate crimes against Muslims.  How about mass shootings Attorney General Lynch?   According to a study reported on NPR, mass shootings in the U.S. tripled  from 2008 to 2014, and a lot of the shooters were radicalized Muslims.  When a Jihadist killed 49 people in a gay nightclub last June, was that a hate crime?  

Ohio Court Upholds Another Death Sentence:  Gary Shaffer of The Cleveland Plain Dealer reports that in a 6-1 decision announced today, the Ohio Supreme Court upheld the conviction and death sentence of Dawud Spaulding for the double-murder of his ex-girlfriend and her boyfriend exactly five years ago.  Spaulding, an habitual felon, was also found guilty of shooting the boyfriend's nephew, which left the victim paralyzed from the neck down.  The high court rejected 14 error claims raised by Spaulding, including the standard "ineffective assistance of counsel" and that he should have been tried separately for each murder.  At trial, the evidence included proof of Spaulding lying about his whereabouts on the night of the murder, and two witnesses who put Spaulding at the crime scene at the time of the shooting, including the paralyzed nephew.  The lone dissenter, Justice William O'Neill wrote, "I have grave concerns that the jury reached its verdicts in this case for the wrong reasons."     

Says here that Jeff Sessions wins confirmation as Attorney General with a bi-partisan vote of 57-43 (or 56-43 if Sen. Heitkamp (D-ND) has left the Senate to become Secretary of Agriculture and has not been replaced).

The U.S. Supreme Court has taken up two cases from the District of Columbia's local court system (not to be confused with USCA-DC).  The cases involve the rule of Brady v. Maryland (1963) that the prosecution must disclose to the defense material exculpatory evidence in its possession.  "Material," in this context, means evidence that might have made a difference in the result.

The high court rewrote the question presented as simply, "Whether petitioners' convictions must be set aside under Brady v. Maryland, 373 U.S. 83 (1983)."  This is highly unusual.  Application of settled rules of law to particular fact patterns is something the high court generally leaves to lower courts.  Characterizing a case as "fact-bound" is what you do when you won in the lower court and don't want SCOTUS to get involved.  If you can get the Supreme Court to accept that characterization, it's usually the kiss of death for the other side's request to take the case up.

What is different about this case?  Is the court worried that this is a case of actual innocence injustice so compelling that it must break its usual pattern to intervene?  The justices usually defer to trial court judge's judgments on such matters, and that is certainly not how the district court judge saw this case.

Baltimore Breaks 300 Homicides: Two people were killed in Baltimore shooting Tuesday evening, marking the city's 300th recorded homicide for the year. Deborah Weiner from NBC reports that last year around this time, the homicide count in Baltimore reached 325, a result of the surge in crime following the April riots. Last year Baltimore recorded a grand total of 344 homicides, surpassed only by the 1993 record of 353.

Death Sentence Upheld in Chino: The California Supreme Court denied the automatic appeal of a man on death row Monday. According to Brian Rokos at the Press Enterprise, Daniel Landry, 48, stabbed inmate Daniel Addis to death at the California Institution for Men in Chino on Aug. 3, 1997. Due to the circumstances of the stabbing, Landry was sentenced to die based on a recommendation from the Jury as he was already serving a 70 year sentence for the attempted murder of a police officer. Landry's automatic appeal was unanimously denied Monday.

Academia, the Left, and libertarians relentlessly tell us that the War on Drugs is a failure.

According to a recent report released by the Center for Disease Control and Prevention (CDC), today's teens are actually better behaved than the generations which preceded them, relatively speaking.

According to the annual Youth Risk Behavior Surveillance System (YRBSS) fewer teens are having sex and using drugs or alcohol. In fact, today's teenagers actually have the lowest rates of ecstasy, heroin, and meth use on record.

The federal district court in Vermont has denied a defense motion to strike the US Attorney's Office's Notice of Intent to Seek the Death Penalty.  The court's 57-page Memorandum Opinion is here.

More Cop Shootings:  A police officer in Nashville was shot early Tuesday while trying to serve an arrest warrant.  Juan Buitrago and Andy Humbles of the Tennessean report that Officer Terrance McBride and his partner were let into a motel room where the suspect was staying by a woman who left as the shooting started.  McBride was shot in the shoulder while checking the bathroom, both officers returned fire and exited the room.  After a standoff, the suspect was found dead, apparently from a self-inflicted gunshot wound.  Two central Georgia police officers were shot while attempting to execute a search warrant early Monday morning.  Fox News reports that Officers William Patterson and James Wynn were part of a eight member drug task force that arrived at the suspect's home and entered after knocking and announcing.  Both officers were injured during a shootout inside the home that left the suspect, Rainer Tyler Smith, dead.  

Ohio Murderer's Death Sentence Upheld:  The Ohio Supreme Court voted 6-1 to uphold the death sentence for Steven Cepec, convicted of the brutal 2010 strangling murder of a 72-year-old man during a robbery.  The Associated Pres reports that Cepec's attorneys failed to convince the court of several error claims including that his statements to police should have been excluded from trial.  Facts outlined in the court's decision indicate that on May 28, 2010, Cepec was released from prison to a drug rehab program, which he abandoned the next day.  On June 3, he visited his girlfriend's father's barn.  Hours later police responded to a 911 call to the father's house.  When they spotted Cepec in the garage, he ran into the woods where he was caught and arrested.  Inside the house police discovered the father's beaten and strangled body.  An autopsy revealed that the victim had been beaten severely with a claw hammer before being strangled with an electric cord. The keys to the victim's car and pickup were found on the backseat floor of the police car where Cepec was held following his arrest.  The victim's blood was found on Cepec's clothes.  Another non-violent drug offender who deserved a second (or third or fourth) chance.   

Today the U.S. Supreme Court declined to take up the case of Tyler v. Louisiana, No. 15-8814.  Tyler's complaint is that his lawyers ignored his direction to focus on the guilt aspect of the case and instead focused solely on penalty, effectively conceding his guilt. 

I have more sympathy with Tyler's claim than I do with most ineffective assistance claims.  There is a fundamental principle in the attorney-client relationship that the client chooses the goals and the attorney uses his professional judgment regarding the best way to achieve the client-chosen goals.  I have letters from death row complaining that, on appeal, the client has chosen a "give me liberty or give me death" goal, directing the lawyer to focus solely on the guilt verdict, and the lawyer has ignored the direction.

In the Tyler case, though, some of the reporting is leading people to believe that the guilt case against Tyler was thin and his lawyers effectively conceded the guilt of a person who might well be innocent.  After the break, I will quote a portion of the state's brief in opposition on the actual state of the evidence.

Actually, cheaters do win from time to time, but not in today's Supreme Court decision in Shaw.  The Heritage Foundation summarizes the Court's unanimous opinion, per Justice Breyer, as follows:

Federal law makes it a crime to defraud a bank. Shaw obtained a customer's bank account numbers and used them to transfer funds from the customer's account to his. Convicted of bank fraud, Shaw argued that the statute makes it a crime only to "defraud a financial institution," not one of its customers. In a unanimous opinion by Breyer, the Supreme Court upheld Shaw's conviction. The Court stated that either the bank deposits are the property of the bank as well as the customer (which is why the bank can earn interest on the funds) or the bank is the custodian of the funds for the customer (which gives the bank a possessory interest in them against everyone except the customer). That neither the customer nor the bank suffered any financial loss is immaterial, because the statute does not require any such proof. Cheating a person or a bank out of insured funds is still fraud. Nor does it matter that Shaw had no purpose to defraud the bank, since the statute requires only that he had knowledge of the fraudulent scheme, which he clearly had. Finally, the statutory text is clear so the Rule of Lenity does not apply.

Another controversy relating to the execution of Ronald Smith concerns use of the three-drug protocol with midazolam (Versed) as the first drug.  This is the same protocol that was at issue in Glossip v. Gross in 2015.  Kent Faulk of the Birmingham News reports:

During the 34-minute execution at the Holman Correctional Facility in Atmore, Smith heaved and coughed for about 13 minutes and underwent two consciousness tests to make sure he couldn't feel pain.

We have known for some time that the single-drug method with thiopental or pentobarbital is the way to go.  Texas has done dozens of these without incident.  The incoming administration should take steps to make sure the states can obtain these drugs, both to reduce the chance of an actually inhumane execution and to ensure that justice is not defeated by a complete unavailability.

There are a number of possible routes to a fix.  The erroneous decision that prevents states from importing thiopental from willing sellers overseas could be abrogated by statute or taken up to the U.S. Supreme Court.  The government could itself  import the drug or the ingredients from which it is compounded and distribute them to the states.  A government entity with the capability to do so might manufacture the drug.  One way or another, a permanent fix to this problem should be a priority.

As noted in today's News Scan, last night Alabama executed murderer Ronald Smith.  The execution involved last-minute petitions to the U.S. Supreme Court, which is routine, but there was an unusual four-four split on the presently eight-justice court.

At the root of the case is the decision last term in Hurst v. Florida.  Under the post-1976 capital sentencing system mandated by Supreme Court precedents, courts must find the defendant guilty of murder plus at least one factor from a list of aggravating factors defined by state law before the death penalty can be considered.  In Ring v. Arizona (2002), the Supreme Court overruled its own precedent and said the jury, not the judge, must make that latter finding.  In Hurst v. Florida (2016), the court applied Ring to strike down the Florida sentencing system that it had repeatedly approved multiple times against the very same attack.

Does Hurst extend further, to require the jury and not the judge to make the additional findings that state law requires before a "death-eligible" defendant is actually sentenced to death?  In my opinion (and that of the Alabama courts), the answer is clearly no.  However, the Delaware and Florida Supreme Court think it does.

The U.S. Supreme Court needs to take this issue up and resolve the split, and an Alabama case would be the cleanest vehicle to do so.  The high court has sent several Alabama cases back to the state courts, and it presently has several on its docket pending decision on whether to take them up.  The Smith case last night, however, was not a clean case.

Louisiana Illegal Immigrant Rapist on the Run: One of the two illegal immigrants suspected in an aggravated rape in 2013 is on the run. John Binder of Breitbart News reports that Illegal immigrants from Mexico, Christian Ramirez and Mario Rameriz, were both arrested and charged with aggravated rape of pre-teen girls in the northern Louisiana town of Farmerville in 2013. Rameriz was convicted of the rape and is currently serving his sentence, while Ramirez was turned over to ICE which mistakenly released him. Ramirez's whereabouts are currently unknown although authorities believe he may have fled back to Mexico.

Ohio Murderer's Death Sentence Upheld: The death penalty imposed on an Ohio man convicted of 11 counts of murder was upheld by the state Supreme Court Thursday. As reported by Bill Mears of Fox News, Anthony Sowell, who was convicted of murdering 11 women and hiding their remains on his property was sentenced to die in 2011. Recently, Sowell's counsel brought a motion for retrial on the grounds that a videotaped confession was inadmissible and prejudiced the case. In a 5-2 decision, the Court denied that claim the death sentence was upheld. Sowell's attorneys intend to appeal.

Alabama Inmate Executed Despite Delays: A man convicted of shooting and killing a convenient store clerk more than two decades ago was executed in Alabama late Thursday night. CBS News reports that Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m. after a lethal injection at the state prison in southwest Alabama. In a 7-5 decision, the sentencing jury had recommended that the defendant face life in prison, but the presiding judge overrode the recommendation and imposed the death penalty.  The execution was delayed twice while the defendant's counsel argued that a judge should not have the power to override the jury and impose a death sentence, but the Supreme Court eventually declined to issue a stay.  Smith was found guilty of capital murder in 1994 for the shooting death of store clerk Casey Wilson. This was the second to take place in Alabama this year.

The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

There is a right way and a wrong way to invoke the "nuclear option" to eliminate the filibuster or to limit the topics on which it may be used.  There is a lawful way and a lawless way.  Harry Reid and his gang did it the lawless way.  The Senate majority of the incoming 115th Congress should do it the lawful way as the first order of business.

Last week in Stockton, California, a plea bargain was reached in one of the most notorious cases in recent years, a bank robbery in which the robbers took hostages, one of whom was killed.  Roger Phillips reports for the Record:

[Paul] Singh spoke about three hours after Jaime Ramos and Pablo Ruvalcaba pleaded guilty to the murder of his wife, 41-year-old Misty Holt-Singh, during Stockton's Bank of the West robbery on July 16, 2014.

Ramos, 21, will spend the rest of his life in prison. Ruvalcaba, 23, received 25 years to life.

*                    *                    *

Ramos had faced the death penalty. Public defender Jonathan Fattarsi, who represents Ramos, suggested it was not a coincidence that his client's case was resolved within weeks of California voters' rejection of a measure that would have abolished capital punishment in the state.

"Obviously we didn't want to start talking seriously about (a plea agreement) with the District Attorney until after we knew the fate of Proposition 62," Fattarsi said.

If voters had ended the death penalty, Fattarsi said, the motivation to accept a life sentence for his client would have been gone.

An implicit assumption in the outcry for releasing "nonviolent offenders" is that criminals specialize, and a person in prison for, say, burglary, is no more likely to commit a violent crime than regular law-abiding people are.  Last month, California voters approved an initiative for releasing supposedly "nonviolent" criminals by a landslide even while they rejected an initiative to repeal the death penalty by a greater margin than they did four years ago.  That indicates the extent to which the "nonviolent offender" myth has taken hold.

But it's a bunch of hooey.  Today the U.S. Bureau of Justice Statistics released supplemental data on Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010.

How many prisoners released in 2005 were rearrested by 2010, and for what crimes?

For those committed for violent offenses, 33.1% were rearrested for another violent offense.  For those whose most serious commitment offense was classified as a property offense, 28.5% were rearrested for a violent offense.

Is that a big difference?  No, it is a small, bordering on trivial, difference.  The premise that "nonviolent offenders" can be released without placing law-abiding people at increased risk of violent victimization is just plain wrong.

2 Officers Shot in Georgia: Two police officers sustained serious injuries in shootings that took place early Wednesday morning. Jon Gosa of the Albany Herald reports that the two officers were injured this morning in separate shootings which are believed to be related. One of the officers was with the Americus Police Dept. and the other was with the Georgia Southwestern State University Campus Police. The suspected shooter is still at large. During the investigation, GSSU will be on campus-wide lockdown.  ABC News reports that the Albany Police Department has identified the shooting suspect as Minguell Kennedy Lembrick, 32.

Parolee Arrested For Discharge and Possession: A habitual criminal was arrested in Salinas, CA late Monday night following a report that multiple gunshots had been fired. Chelci Adami from The Californian reports that Armando Yslas, a 36-year-old Parolee discharged four rounds from a stolen semi-automatic pistol with the serial numbers filed off. He reportedly fired the weapon in response to an argument he was having with a woman who lived nearby. Following his arrest, the responding police found an additional 40 rounds of ammunition in Yslas's possession. 

Florida Asks SCOTUS to Clarify Hurst Ruling:  The state of Florida is asking the U.S. Supreme Court review a Florida Supreme Court ruling in a death penalty case.  Last January in  Hurst v. Florida  SCOTUS held Florida's capital sentencing process violated the Sixth Amendment.  After the state legislature adopted a law correcting the process, the state's highest court ruled that it did not comply with Hurst regarding requirements for jury findings of aggravating circumstances.  Dara Kam from The News Service of Florida reports that state court interpreted Hurst to require that jurors find all aggravating factors, mitigating factors and weigh them before recommending a sentence.  The Florida Attorney General believes that this goes beyond what was actually required by Hurst, and is asking the high court to clarify this.  Timothy Lee Hurst was convicted and sentenced to death for the May 1998 murder of a female co-worker at a restaurant he was robbing.  Her body was found stuffed in a freezer.    

Bret Stephens writes the Global View column at the WSJ.  He was that paper's most persistent and outspoken critic of Donald Trump throughout the campaign.  He has these thoughts on the global populist wave (italics added):

Governor-Elect's Wife Robbed at Gunpoint:  The wife of Missouri Governor-elect Eric Greitens was robbed Monday.  Fox News reports that Greitens' wife Sheena left a St. Louis restaurant early Monday evening and had just gotten into her car when a suspect opened the door and threatened her with a gun.  After she turned over her laptop and phone, the suspect fled.  Police were able to track a cellphone stolen from a nearby car to the suspect vehicle.  The vehicle crashed after a brief chase and three teenagers were arrested and the stolen phones and laptop were recovered.  Greitens, a Republican and former Navy Seal, said that a focus of his administration will be "safe neighborhoods."

Afghan Arrested For Rape/Murder of German Student:   A 17-year-old Afghan immigrant has been arrested for the rape and drowning murder of a German medical student.   Victoria Friedman of Breitbart  reports that the suspect, whose name was not released, entered Germany last year as an unaccompanied minor under Chancellor Andrea Merkel's "open door" policy.  DNA linked the suspect to the rape and murder of 19-year-old Maria L., early in the morning of October 16 as she was returning to her residence hall after a party.  Her body was found along the Dreisam River in Freiberg.  Police mentioned similarities between the yet-unsolved rape and murder of a 27-year-old woman weeks after Maria's death, in the town Endigen, roughly eighteen miles from Freiberg.  

The U.S. Supreme Court today decided Salman v. United States, No. 15-628, yet another case in the continuing saga of when trading securities based on an insider tip is against the law.

What always struck me as very odd about insider trading is that we have this enormous body of law with both criminal and civil liabilities, and at the root of it all is a very broadly worded regulation, SEC Rule 10b-5, not a statute.  The statute in question, 15 U.S.C. § 78j(b), makes it a crime to trade securities using "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe ...."

Should insider trading be a crime?  Yes, under some circumstances.  But Congress should make it a crime, not the SEC.  Administrative agencies have a place in modern civil law, filling in gaps that the legislature will not get around to, but defining crimes should be a non-delegable legislative power.

...here's a juicy item from today's Sentencing Law and Policy:

The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:

One in three Americans has a criminal record.  Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility...

There is a paragraph and a half following that squib in the SL&P entry, but I stopped right there, because there is a limit on how many brain cells I'm willing to kill by reading pure tripe.

As of 2:24 pm today, the Proposition 66 margin of "yes" over "no" is 287,711 votes.  This exceeds the number of unprocessed ballots in today's 11:59 am Unprocessed Ballots Report, which is 232,852.

The Secretary of State has until December 16 to certify for results for all races except the presidential election.

The all-but-final result on the Proposition 62, the death penalty repeal measure, is 46.9% to 53.1%.  The margin is 845,755 votes.  The 6% spread is greater than the 4% spread by which California voters rejected substantially the same proposal four years earlier as Proposition 34. 

I wrote a few days ago about the hundreds of victims of murder, rape and robbery whose victimizers were set loose early because of the sentencing "reform" statute followed in the District of Columbia.  That statute, the Youth Rehabilitation Act, was born of exactly and precisely the thinking that continues to push sentencing "reform" in Congress:  That we must avoid the collateral consequences of giving young adults a felony record, that we're too punitive, that the system is racially biased, and that everyone deserves a second chance. 

The First Amendment to the U.S. Constitution says, "Congress shall make no law ... abridging the freedom of speech ...."  The Fourteenth Amendment is understood to extend this limitation to state legislatures.

Note the wording carefully.  It does not say "the freedom of speech" has no limits.  The freedom of speech may not be abridged, meaning reduced from what it was when the First Amendment was adopted.  "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U. S. 47, 52 (1919) (Holmes, J.).

Threatening people is not within "the freedom of speech."  Fourteen years ago, CJLF defended Virginia's cross-burning law as applied to a cross burned in a manner that constituted a threat to specific people, and the U.S. Supreme Court upheld it as so applied in Virginia v. Black.*

A few years later, the Virginia Legislature added a "noose law" along similar lines.   The Virginia Court of Appeals upheld the law as applied on Nov. 22 in Turner v. Commonwealth.

What is the highest level of agreement Gallup has ever polled on a public policy question?  Lydia Saad has this item from Gallup's vault, 75 years ago next week.  She doesn't say it's the highest, but it is hard to imagine anything above 97%.

Arrest Made in Ohio Child Kidnappings:  A 29-year-old man has been arrested for the May 21, 2016 kidnapping of a six-year-old Cleveland girl.  ABC News 5 reports that familial DNA helped link Justin Christian to the abduction of the little girl from her bedroom as she slept.  The FBI has also linked Christian to the attempted kidnapping of a 10-year-old girl last February.  Several recent child abductions in the Cleveland area have kept the community on edge, as police conducted a ten-month investigation.  Law enforcement officials have not yet reported on Christian's possible connection with other cases.  

Illegal Arrested For Murder:   An illegal alien has been arrested for the murder of a Wichita mother and the kidnapping of her baby last month.  KNSS Radio reports that Yesenia Sesmas had been arrested last July and her immigration status was reported to  U.S. Immigration and Customs  (ICE), but the agency did not move to detain her before she posted bail and was released.  According to the County Sheriff, had ICE put a detainer on the woman, she would not have been free to commit the murder or kidnap the baby.   ICE responded that while they were notified of Sesman's arrest and immigration status, they did not have time to detain her before she was released.   ABC News reports  that the July arrest of Sesmas was for two counts of aggravated kidnapping and aggravated robbery for allegedly taking two Wichita children.  

LA "Ban the Box" is a Jackpot for Felons: A recent measure passed by the Los Angeles City Council is good news for felons, although employers may see it differently. Doug McIntyre of the Los Angeles Daily News reports that last week in a 12 to 1 vote, the LA City Council passed the "Ban the Box" or "Fair Chance" measure which will prohibit employers from questioning prospective employees about their criminal history during the initial hiring process. Not only does this hinder an employer's ability to screen potential applicants, but it opens businesses to a wide array of litigation for every time they unknowingly turn down a felon for employment

The Federalist Society has this Courthouse Steps podcast on the Nov. 29 Supreme Court oral argument in Moore v. Texas.  The podcast is a recording of a December 2 teleforum with CJLF Legal Director Kent Scheidegger.

Police Officers Shot in Arizona & Washington:  Veteran Tacoma, Washington police officer Reginald "Jake" Gutierrez was shot and killed Wednesday as he responded to a domestic violence call.  CBS News reports that when Gutierrez and his partner arrived at the scene early Wednesday evening a woman told them that her husband had locked her out of their house.  The officers entered the house and the suspect shot Gutierrez multiple times.  After a standoff of several hours the suspect was shot and killed by a police deputy.  On Thursday a habitual criminal shot two Arizona police officers when they were attempting to serve an arrest warrant in Tucson.  Garrett Mitchell of the Arizona Republic reports that officer Jorge Tequida is in critical condition from the shooting while his partner officer  Doug Wilfert, who was wounded in the leg, was treated and released.  The shooter, Jose Noe Barron Gomez, was killed during the gunfight.  Gomez was wanted for aggravated assault, and had a prior for drug smuggling.  132 police officers have died in the line of duty this year.  

The Washington Post published a story today that should bring shame to the cheerleaders for "leniency" for "young offenders" in order to give them a "second chance."  

Congressman Appointed CA Attorney General:  In a surprise announcement today, California Governor Jerry Brown appointed Congressman Xavier Becerra to replace Senator-Elect Kamala Harris as the state Attorney General.  Sara Wire and John Myers of the Los Angeles Times report that Becerra served in the California Assembly and spent three years as a Deputy Attorney General before his election to represent the state's 34th Congressional District in 1992.  During his twelve terms in Congress, Becerra rose to become the current Chairman of the House Democratic Caucus.  While Becerra has not announced plans for run for the job in 2018, the possibility would be a setback for Democrat  Insurance Commissioner Dave Jones, who had already declared his intention to run. In a statement, Governor Brown praised Becerra's public service and said that as AG he will  "help our state aggressively combat climate change."  

Sherri Papini went for a run on November 2nd, but never returned home.  She did not pick up her two young children from daycare that evening and her cell phone was found lying on the side of the road.  Three weeks later, she is found alive in the very early morning hours by a passing motorist on the side of a County Road approximately 150 miles from her home.  She is chained and severely injured.  Her nose is broken and her skin has been branded by her captors. 

I live in the County where she was found that morning.  A friend of mine was the CHP Officer first on the scene.  When I got the news that she had been found alive, my first reaction was of shock and disbelief.  Too often these types of missing persons cases end with a dead body.  The cynic in me assumed that Sherri Papini would be found at some point in a similar manner.  Thankfully for her children and family, her story did not end in a typical fashion.

Unfortunately, immediately upon her discovery, the media and public jumped to the conclusion that the whole thing was a hoax.  Really?  A hoax by whom?  The severely beaten, branded and chained up woman who'd been thrown from a moving car onto the side of a pitch dark road in the middle of the night in the freezing cold?  Why are people so quick to assume that she's lying, or her husband is lying?  Perhaps I'm too trusting or gullible to believe otherwise.  Or perhaps despicable people like Scott Peterson or Drew Peterson make it hard to believe the story being told.

The details will come out eventually and I hope whoever is responsible is caught.  Any punishment the perpetrators receive, however, will in no way compare to the cruel and unusual torture that Sherri Papini endured and will continue to endure emotionally for the remainder of her life.