March 2017 Archives

News Scan

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Seven Chicago Deaths Thursday: Seven more people lost their lives to shootings in Chicago Thursday. Sam Charles of the Chicago Sun Times reports that three separate shootings took place over a twelve hour period. Among the seven victims who died was a pregnant woman. As we approach the the end of the third month of 2017, it's worth noting that this is the second time since January that the city of Chicago has had seven murders in a single day. 

Murderer of Teen Faces Capital Punishment:  A Pennsylvania couple may face the death penalty for the the rape, murder, and dismemberment of a teenage girl.  US News reports "Bucks County prosecutors made the announcement Friday, when 44-year-old Jacob Sullivan waived his formal arraignment on homicide, rape, kidnapping and other charges in the death of Grace Packer in July. Sullivan was enacting a murder-rape fantasy with the adopted 14-year-old daughter of his girlfriend Sara Packer.  Police believe that Packer actually watched the rape and murder.  After the girl was dead, her body was cut into pieces and dumped in a remote area. Both Packer and Sullivan could be sentenced to death for the crime.  The trial date has been set for March 2018.

Parolee Suspected of Killing Girlfriend: A San Bernardino parolee who was still wearing his ankle monitor was taken into custody Sunday on suspicion that he killed his girlfriend during a domestic dispute. Anne Millerbernd at the San Bernardino Sun reports  that Julio Cesar Serrano, 42, showed up at a family member's Los Angeles home about 1:40 p.m. and said that he had hurt his 45-year-old girlfriend, Martha Garcia.  According to a news release from the San Bernardino Police Department, Serrano was free on parole for burglary as well as "numerous prior arrests.

Democracy Returns to the Senate

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The New York Times has this editorial, with the above title.  The NYT blasts the filibuster as an "undemocratic procedure" and the Senate's "most infuriating rule."  It is "unthinkable," says the Times, that federal judges should be subject to supermajority requirements for confirmation.

But the Constitution gives presidents the right to nominate top officials in their administration and name judges, and it says nothing about the ability of a Senate minority to stop them. (The practice barely existed before the 1970s.) From now on, voters will have to understand that presidents are likely to get their way on nominations if their party controls the Senate.
Wait a minute ... This editorial is from 2013.

Never mind.

Lying By Cherry-Picking

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There are many ways to misuse numbers to intentionally create a false impression in the mind of the reader.  Such deception is morally no different than lying, in my view, even if one carefully avoids saying anything false.  Tyler Cowen at Marginal Revolution has pointed out an exceptionally egregious example from the New York Times.

The headline of the Times article is "Amid 'Trump Effect' Fear, 40% of Colleges See Dip in Foreign Applicants."  The article states:

Nearly 40 percent of colleges are reporting overall declines in applications from international students, according to a survey of 250 college and universities, released this week by the American Association of Collegiate Registrars and Admissions Officers.
The actual finding of the survey is "39% of responding institutions reported a decline in international applications, 35% reported an increase, and 26% reported no change in applicant numbers."  That is a complete nothingburger, but cherry-picking the first number creates a very wrong impression.

Cowen is too generous in the title of the post:  "This one is a real blooper and I cannot let it pass by."  The word "blooper" implies an innocent mistake or accident.  This looks like intentional deception to me, and that appearance is reinforced by the fact that the misleading story and atrocious headline are still on the NYT website three days after this has been all over the internet.  Additional commentary comes from James Freeman at the WSJ and Eugene Volokh at the Volokh Conspiracy.

We see similar cherry-picking in arguments about criminal justice, but this is such a clear and obvious example of the deceptive tactic that I thought it worth noting here.

News Scan

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The NY Times Take on Moore v. Texas:   "Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual's life is at stake," wrote Justice Ruth Bader Ginsberg in her 5-3 opinion in Moore v. Texas, which overturned a murderer's death sentence.  Adam Liptak of the Times reports that the decision was the most recent in a series of rulings refining (read expanding) Atkins v. Virginia which announced that it is unconstitutional to execute mentally retarded murderers.  Moore fatally shot a 72-year-old store clerk in the head with a shotgun during a robbery in 1980.  He wore a wig during the robbery, then hid the shotgun and fled to Louisiana to avoid arrest.  Justice Ginsburg held that the Texas Court of Criminal Appeals had given too much weight to Moore's adaptive skills and knowledge of guilt, and not enough to his low IQ scores.  The story in the Houston Chronicle provides a more balanced perspective.

Arrest Made in Fla. Cop Shootings:  Miami-Dade police have arrested a 19-year-old man they believe ambushed two Florida homicide detectives Monday.  David Ovalle & Charles Rabin of the Miami Herald report that both detectives were in a unmarked van at a housing project doing surveillance on a suspect vehicle when a group of men approached.  One of the men opened fire with a semiautomatic rifle striking the vehicle at least eight times and wounding both officers.  One of the detectives recognized the shooter as Damian "Damo" Thompson, who is a suspected associate with a street gang.  Thompson, who was arrested last November for drug dealing, and in January on an illegal weapons charge, now faces trial on two counts of attempted murder. 
The California Attorney General's Office occasionally acts as the trial prosecutor, such as when the District Attorney of the county is recused.  Today the office issued this press release:

Today, Attorney General Xavier Becerra announced that his office will continue to seek the death penalty in the case of Scott DeKraai, who pleaded guilty to murdering eight people and attempting to murder a ninth person at a Seal Beach hair salon in 2011. 

"This tragic event has caused so much harm to far too many families," said Attorney General Becerra. "After weighing the evidence, considering the law and the responsibilities of my office, I have concluded that the appropriate course of action is to seek the death penalty in this case." 

The Attorney General assumed responsibility for the prosecution of the penalty phase of the case after the California Court of Appeal upheld Orange County Superior Court Judge Timothy Goethals' order recusing the Orange County District Attorney's Office from the prosecution.

The victims were Michelle Fournier, Christy Wilson, Randy Fannin, Lucia Kondas, Victoria Buzzo, Laura Webb Elody, Michele Fast, and David Caouette. DeKraai also shot and wounded Hattie Stretz.
The present AG was appointed by Governor Jerry Brown after the elected AG was elected to the U.S. Senate.

It is good to know that he is not a "never under any circumstances" type.

News Scan

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Mass. Sheriff: Arrest Sanctuary City Leaders:  Bristol County Sheriff Thomas Hodgson told a House Subcommittee Monday that the leaders of sanctuary cities should be arrested for obstructing federal law.  CBS Boston reports that the Sheriff told committee members that sanctuary cities "have become magnets for illegal aliens, some of which have violent criminal records."  He also called out a Massachusetts legislator Michelle DuBois who passed along rumors of a planned ICE raid in Brockton, posting on Facebook "if you are undocumented don't go out on the street. If there is a knock on the door...and you don't know who it is, don't open the door."   "Any person who actively incites panic or fear of law enforcement is doing a disservice to the  community, endangering public safety and the very people they claim to support and represent," said Shawn Neudauer of ICE. Democrats across the commonwealth have pushed back and said they stand with sanctuary cities.

Arian Campo-Flores has this article in the WSJ with the above title.

Florida Gov. Rick Scott notched a legal victory Tuesday in his dispute with a state attorney over her refusal to seek the death penalty, when a state judge ruled that the governor had the authority to remove her from a case.

Aramis Ayala, the state attorney for Orange and Osceola counties, announced earlier this month that she wouldn't pursue capital punishment for Markeith Loyd--charged with killing his pregnant former girlfriend and a police officer--or any other defendant.
George Soros pumped big money into the campaign of Ms. Ayala, among other prosecutor candidates around the country, to influence the prosecution of capital cases.  If a candidate wants to announce in advance that, if elected, she will never seek the death penalty in any case, that is one thing.  To get elected with that secret intent and then spring it after the election is something else.  That is fraud on the electorate.
Today, the U.S. Supreme Court, 5-3, took a step toward forcing states to consider a broader group of people to be intellectually disabled (formerly called mentally retarded) and thus exempt from capital punishment regardless of how many or how heinous their crimes and regardless of how little they are over the fuzzy and shifting line between qualifying for the diagnosis and being just a little brighter.  CJLF wrote an amicus brief in this case supporting Texas.

It was no surprise in the case of Moore v. Texas that the high court would disapprove of the Texas Court of Criminal Appeals' home-brewed list of seven factors, the Briseno factors.  The court was unanimous on that point.  I was pleased to see that they did not endorse the myth that the factors are based on Steinbeck's Lennie.  Maybe footnote 3 of our brief had an effect.

The more critical question was whether private organizations with pro-defendant agendas (including the American Psychiatric Association and the Association on Intellectual and Developmental Disabilities) have the power to amend the Eighth Amendment so that states must follow their latest pronouncements, rather than their previous pronouncements, in deciding who qualifies for the no-matter-what exemption.  On this essential point the Court hands us a bowl of mush, and Chief Justice Roberts, in dissent, properly takes the majority to task for it.

A second problem with the Court's approach is the lack of guidance it offers to States seeking to enforce the holding of Atkins. Recognizing that we have, in the very recent past, held that "'the views of medical experts' do not 'dictate' a court's intellectual-disability determination," the Court assures us that it is not requiring adherence "to everything stated in the latest medical guide," ante, at 9- 10 (quoting Hall, 572 U. S., at ___ (slip op., at 19)); States have "some flexibility" but cannot "disregard" medical standards. Ante, at 10, 17. Neither the Court's articulation of this standard nor its application sheds any light on what it means.
The whole reason for having a Supreme Court in the first place is to establish a clear rule of law for all the other courts of the nation to follow.  The high court's precedents may not be right in the abstract, but they are "right" by operational definition.  "We are not final because we are infallible, but we are infallible because we are final," as Justice Jackson famously said. 

What should a state supreme court do now if the DSM-IV definition of "retardation" is written into its statute, but the defendant claims the DSM-5 definition is now required as a matter of federal constitutional law under Moore?  A court applying a statutory definition cannot simply "consider" the DSM-5.  A statute must be obeyed unless it is unconstitutional.  Is a statute codifying the DSM-IV standard, constitutional when it was enacted, now unconstitutional because a bunch of politicized psychiatrists, motivated to minimize the number of death sentences, pronounces the definition to have changed? 

Today, the Supreme Court said, "Maybe, maybe not.  You have to guess."  That is not why we have a Supreme Court.  This is an institutional failure.

News Scan

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Oklahoma Officer Dies in Shootout: An Oklahoma police officer lost his life early Monday morning following a shootout with a suspect. Fox News reports that officer Justin Terney was engaged in a shootout with a suspect following a traffic stop late Sunday night. The suspect fled from the officer following the stop and opened fire after the officer used his stun-gun to attempt to subdue the suspect. Following surgery, the officer lost his life. The suspect who also sustained injuries is still in intensive care.

Series of Shootings in Florida: A series of shootings Monday morning in Sanford, Florida, has left at least one person dead and multiple people wounded. John Bacon of USA Today reports a gunman shot four people in a home before leaving and shooting at random bystanders on the street before being subdued by Florida police. A woman in the home was killed and an adult and two children, ages 7 and 8, were rushed to a hospital in critical condition. The shooting reportedly originated with some form of domestic dispute.

Illegal Immigrant Attempts Texas Kidnapping: An Illegal immigrant tied up a Texas woman and forced her into a vehicle in attempt to kidnap her last Wednesday.  WBAL TV reports that the woman told authorities she had been supplying food and water to the man, who was staying behind her Carrizo Springs house for three days before he allegedly tried to kidnap her. Luckily, the woman was able to escape while he was trying to start the vehicle. She eventually led authorities to the suspect, who was found unresponsive lying in a grassy area - though medical technicians later determined he was faking his condition.

Washington State May Toughen DUI Law:  The Washington Senate passed a bill  that would toughen the sentence for those who habitually drive while intoxicated.   Jim Camdon of the Spokesman-Review reports that the House is now considering the Senate bill which would allow a sentence of 13 months in prison for a person convicted of their 4th DUI.  The bill also punishes drivers under the influence of drugs, including those who have used marijuana, which is legal in Washington. This is in response to an increase in marijuana-related accidents.  A driver under the influence of marijuana is "an unguided missile that is one intersection away from a direct hit," said Spokane County Prosecutor Larry Haskell.

Filibuster Folly

The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 
Jesse Gary of KTVU in San Francisco has this report with the above title on the effects of Proposition 57, passed by the voters last November.

The killing of Madyson Middleton struck at the core of California's conscience because it was a hideous crime committed in a Santa Cruz arts center apartment complex.

The slaying of the 8-year-old [girl] was made more shocking because the identity of the suspect was the victim's then-15 year old neighbor.
*           *          *
The suspect, identified as Adrian Jerry Gonzalez, was charged as an adult for killing and sexually assaulting the girl before her body was dumped into a recycling bin.

Almost two years after the crime, the suspect still hasn't been brought to trial.
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The trial delay is directly linked to an act approved by voters that was an effort to improve the judicial process. Last fall, voters approved Proposition 57, which passed with nearly 65 percent of the vote.

The measure in part mandates that juveniles accused of a crime receive a special transfer hearing to determine if they should be tried in adult or juvenile court.
The story refers to this as an "unintended" consequence.  It was unintended by the people, who were not well informed what they were voting on, as the press and the big money were on one side and the underfunded opposition was on the other.  It was intended by the proponents, though, at least in the sense that "knowingly" is equivalent to "intentionally" in culpable mental states.  Proposition 57 was all about helping the criminals with complete disregard for the victims, past and future.

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Officer Saved by Good Samaritans: A Michigan State trooper is grateful that their are still folks who want to help the police. According to Fox News Trooper Garry Guild attempted to make a traffic stop after sighting a suspicious individual riding a motorcycle. The rider attempted to flee and led the officer on a chase across the freeway. When the rider crashed into a ditch, Guild attempted to effect an arrest, but was attacked and placed in a chokehold by the rider's brother who had been following the chase. Jerry Burnham and his wife stopped to help and a second driver pulled up as well. Together, they overpowered the brothers and assisted Guild with getting the men in custody.  The brothers will be facing multiple charges including assault on a peace officer and resisting arrest.

Richmond Murderer Taken into Custody: An evasive suspect in a 2016 murder case in Richmond,CA, has been taken into custody. George Kelly of the East Bay Times reports that on March 10, 2016, police responded to a report of multiple gunshots and found William Malik Barnes, 15, suffering from multiple wounds to the chest.  Despite the efforts of paramedics, Barnes passed away at the scene. Following an investigation, two suspects were identified and charged with murder with gang enhancements.  The first suspect was quickly located and taken into custody, but the second suspect, Parrish Renee Rauls, 21, who was on probation, went into hiding. Rauls was finally arrested Wednesday morning in West Oakland.  California law considers most convicted felons released from state prison or county jail to be low risk offenders and places them on county probation rather than on the stricter supervision provided by state parole.

NY Calls for Megan's Law Update: Following the arrest of a re-arrest of a habitual sex-offender in Westchester, NY, lawmakers are calling for an update to Megan's Law to account for social media. As reported by CBS New York, the new concerns followed the arrest of David Ohnmacht, a sex-offender who had been released six years ago.  At the time of his release, Ohnmacht assured reporters that he had been reformed and that he no longer posed a threat. "After he got off his five years of supervised post-release probation and supervision, he immediately went back and began to engage in some of these actions," criminal justice professor Robert Castelli, who is familiar with the case, said. Ohnmacht is currently in custody and being charged with exchanging sexually explicit messages and pictures with a 14-year-old girl in North Carolina. He faces a minimum of 35 years in federal prison.

Wisconsin Shooter Claims Four: A shooter took the lives of two bankers, an attorney, and a police officer Wednesday. As reported by The Boston Herald, Police characterized the initial shooting at the Marathon Savings Bank in Rothschild on Wednesday, March 22, as a domestic dispute, but have provided no details about the suspect.  Authorities said late Wednesday that there is no remaining threat to the public. The officer who lost his life was Jason Weiland, 40, a detective and 15-year veteran of the Everest Metropolitan Police Department. He died while attempting to establish a perimeter around the shooter to minimize the threat to the community.

Democrats Retake Mantle of Stupid Party

No sooner had Republicans re-asserted their long command of the moniker "Stupid Party"  --  this time by failing to round up the votes to pass an Obamacare replacement before they loudly unveiled it  --  than the Democrats, in a lightning fast maneuver, re-seized it by announcing hours later that they will filibuster the nomination of Judge Neil Gorsuch to the Supreme Court.

You don't need to think about it for very long to understand that this is actually good news for Gorsuch, and for those who hope for more mainstream conservatives and originalists on the Court  --  but bad news for the country, which will now see the selection of Justices descend further into sheer political backbiting.

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Rape/Murderer Sentenced to Death:  A Las Vegas jury has sentenced a repeat sex offender to death for the rape and murder of a 15-year-old girl.  David Ferrara of the Las Vegas Review-Journal reports that after finding 24-year-old Javier Righetti guilty of the 2011 rape and murder of high school freshman Alyssa Otremba, the jury deliberated just three hours before unanimously agreeing on the sentence.   Righetti attacked the girl in a tunnel, 100 yards from her home, as she was walking to a friend's house to borrow a schoolbook.  After he raped Otremba, he tortured her, inflicting at least 80 stab wounds on her face and body before he she died.  He later returned to burn the body.  Righetti admitted to raping two other women inside the same tunnel and to raping his cousin in Mexico three months before he killed Otremba.  

Maryland Governor to Veto Sanctuary Bill:  Less than a week after a 14-year-old high school student was brutally raped by two young men aged 17 and 18  who, the Baltimore Sun reports, were both illegal immigrants assigned to her high school, the Maryland Legislature passed a bill which bars police from determining the immigration status of suspects.  ABC2 in Baltimore reports that in a statement released after the bill passed the Maryland House Governor Larry Hogan called it "dangerously misguided legislation" and promised to veto it the moment it reached his desk. 

Ohio High Court Stays Sentence to Allow Appeal:  In a 5-2 ruling announced last week, the Associated Press reports that the Ohio Supreme Court agreed to stay its earlier holding overturning the 112-year sentence of a convicted juvenile rapist to allow prosecutors to seek a U.S. Supreme Court appeal.  The Court's 4-3 December 22, 2016 ruling announced that the lengthy sentence given to Brandon Moore, who was 15 at the time of the crime, constituted a "functional life sentence," which the Court concluded was prohibited by the U.S. Supreme Court's 2010 ruling in Graham v. Florida, which held that sentencing a juvenile offender to life in prison without parole for crimes other than homicide is unconstitutional.  Brandon Moore was convicted for a crime spree which occurred on August 21, 2001, including the robbery at gunpoint of a Youngstown couple, and the kidnap, robbery and gang rape of a 21-year-old Youngstown University coed.  After the victim had been anally and vaginally gang raped and forced to preform oral sex on Moore and an accomplice, Moore put a gun in her mouth and said "since you were so good, I won't kill you."  He then threatened to kill her and her family if she told anyone what happened.  Following Moore's conviction on overwhelming evidence the trial judge told him, "I'm going to make sure that you never get out of the penitentiary,"  before giving him the maximum sentence allowable under state law.      

Federal Criminal Statistics

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The Bureau of Justice Statistics has released a report on Federal Justice Statistics 2013-2014.  Note the time lag.  That's part of the problem with justice statistics.

Another problem is that statistics are sometimes defined in ways that people would not expect.  "Tracking recidivism rates involved identifying prisoners released from federal prison following a U.S. district court commitment between 1998 and 2014."

What about people released from federal prison and subsequently prosecuted by state authorities?  Not in the definition.  Not tracked.

Three-fifths of federal arrests in 2014 were made in just 5 of the nation's 94 judicial districts -- Southern Texas, Western Texas, New Mexico, Arizona, and Southern California.  What do these five districts have that none of the others have?  You guessed it.

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Arrest Made in CO Double Homicide: A suspect has been arrested in connection with the March 12 double homicide in Colorado Springs.  Ellie Mulder at The Gazette reports that Gustavo Marquez,19, was arrested in the murders of Derek Benjamin Greer, 15, and Natalie Partida, 16, who were found dead on the shoulder of Old Pueblo Road in a rural part of the county. Derek was a freshman and Natalie was a sophomore at Coronado High School.  Marquez faces charges of two counts each of first-degree murder, second-degree kidnapping and aggravated robbery and one count of child abuse resulting in death.  In late February, Marquez was arrested on suspicion of attempted second-degree kidnapping, attempted second-degree assault, third-degree assault and child abuse. Three days after that arrest he posted bond and was released.

Two Men Arrested for Shooting at Police:  Two men have been arrested in connection with a recent shooting at a Selma police officer. George McDonald at Alabama News reports that Demarious "Sleepy" Pullom and Calvin Boyd are currently behind bars on charges that include the attempted murder of a police officer. The men reportedly fired at the officer with automatic weapons when the officer attempted to stop their vehicle. The bail for these charges has been set at $5,000,000 each.

LA Mayor Expands Protection of Illegals:  Robert Jablon of the Associated Press reports that Los Angeles Mayor Eric Garcetti issued a directive Tuesday which bars any city employee from cooperating with the enforcement of federal civil immigration laws. Additionally, the directive forbids city workers from giving ICE agents special access to any city facility, including jails, unless required by law.  This directive responds to the Trump Administration's effort to deport illegal aliens who have committed felonies in the U.S.  LA Police Chief Charlie Beck said that calls to police by Hispanics to report crimes have gone down because they are afraid of deportation. But the Wall Street Journal (subscription)  reported a statement in response by ICE saying, '"Rather than transferring convicted criminal aliens to ICE custody as requested, agencies, including the Los Angeles Police Department, are routinely releasing these offenders back onto the street to potentially reoffend, and their victims are often other members of the immigrant community.''  Somehow, that statement did not make it into the AP story.
Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.

The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence."  The Supreme Court has interpreted that right to include the effective assistance of counsel.  However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice."  The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.

The purpose of the Sixth Amendment is to guarantee a fair trial.  If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain?  That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to.  We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012).  Four justices agreed with us, but five did not.

Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009).  Williams was a murderer, but there is no discussion of the facts in the opinion.  Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."

I think he was right.  In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.

Confirmation Hearing Follies

I've been following the Gorsuch confirmation hearing off and on today, sometimes listening and sometimes following SCOTUSblog's live blog.  It's pretty much the usual, predictable, and often lamentable stuff that confirmation hearings have become today.

One point I thought I would mention.  At about 11:14 ET, Senator Leahy refers to the Federalist Society as a "far right" group.  Seriously?  I have been a member for decades, and I do not recall meeting a single Nazi or Klansman at any of the events.  There is a significant diversity of viewpoint, due in large part to the organization's chimera nature of "conservative and libertarian," which are not at all the same thing.  But far right?

How do we define "far" and "extreme"?  By the absolute value of the distance of one's views from the American median, of course.  Is the Federalist Society any further from the median than Senator Leahy himself?  No.

I will leave the comment thread open for discussion of the hearing generally.  Here is a seed question:  Who has been the biggest jerk among the Senators so far, and why?

News Scan

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Illegal Suspected in Brutal Rape:  Maria Zimmerman of Fox News reports that one of the two suspects arrested for the brutal rape of a 14-year-old girl at Rockville High School last Thursday was caught last August illegally entering the country.  While the suspects, Jose Montano from El Salvador and Henry Sanchez-Milan from Guatemala, were 17 and 18 years old respectively and neither spoke English both were admitted as ninth graders at the Maryland high school, where all of their classmates were 14 or 15.  The victim was walking in a school hallway when the two suspects dragged her into a boy's bathroom and repeatedly raped and sodomized her and forced her to perform oral sex.  A policy director from the Center for Immigration Studies told reporters, "the surge of Central American kids has become a significant problem in many of the school districts where they are allowed to resettle," and Montgomery County has one of the "more notorious sanctuary policies," where the police deliberately do not cooperate with ICE.

Oregon Murderer Pleads Guilty to Avoid DP:  A 21-year-old Oregon man has pleaded guilty to fatally shooting two of his roommates in February 2016.  Barney Lerten of KTVZ 21 reports that, in a petition filed last Friday, Mitchell Morris agreed to plead guilty to murdering Baily Southwick, 18, and Mackenzie Lyman, 21, with the understanding that "the state will not seek a death sentence in this case and the parties stipulate that I will be sentenced to life in prison without the possibility of release or parole."  On February 26, 2016, Morris told police that he had not been arguing with the victims before he shot them in their home in the town of Crooked River Ranch.  He fled the crime scene in a pickup truck and was arrested in Salem the next morning.   

News Scan

ICE Detains 50 in Detroit Raid: In a Saturday raid of a Detroit building, Immigration and Customs Enforcement arrested 50 people. Fox News reports that the raid was part of an on-going investigation. The abandoned building was believed to be the site of cockfighting ring and a illegal gambling organization. Following the raid, ICE arrested 50 of the 83 people in the building for violations of immigration law. The individuals arrested will remain in ICE custody pending removal proceedings pursuant to U.S. immigration law.

Baltimore Manhunt Launched for Firebomber: The hunt is on in Baltimore as a suspect has been named in the firebombing that took place last Thursday. Fox News reports that Antonio Wright, 26, has been accused of throwing the "molotov cocktail" that started a house fire which claimed the lives of two teenagers and seriously injured six others. Most of the victims were below the age of twenty-one. Wright has yet to be arrested, but an investigation is continuing to determine if this event had some connection to a shooting that took place nearby two nights earlier.

Judges Assigned to Expedite Deportations: Twelve US judges have been temporarily assigned to several US cities to work through the backlog of deportations building up from the administration's crack-down on illegal immigrants who have been convicted of crimes.  Julia Edwards Ainsley of Reuters reports that Cities the DOJ wants to staff up include New York; Los Angeles; Miami; New Orleans; San Francisco; Baltimore, Bloomington, Minnesota; El Paso, Texas; Harlingen, Texas; Imperial, California; Omaha, Nebraska, and Phoenix, Arizona. Immigration judges are still being selected for assignment to help with the thousands of pending immigration cases in the targeted cities.

What Exactly is "The West"?

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Several Senators supporting Judge Gorsuch, including Sen. Michael Bennet (D-CO) have made comments about him being from "the West" in contexts that imply that California (home of Justice Kennedy and originally of Justice Breyer) is not "the West."  Is it?

Purely geographically, of course, California is farther west than Colorado, Texas, or Arizona.  But is a movie set in California a "Western"?  The Birds?  Nope.  Magnum Force?  Nope.  Beach Blanket Bingo?  Nope. 

Okay, maybe there is something to that.
According to the live blog of today's confirmation hearing at SCOTUSblog, Senator Patrick Leahy stated in his opening remarks that the Senate's refusal last year to consider an election-year nomination to the Supreme Court was "never grounded in principle or precedent."  He evidently did not mention his former colleague, former Senator and Vice President Joseph Biden, but here is what then-Senator Biden said on the floor of the Senate on exactly that subject on June 25, 1992:

The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
No, I am not taking this out of context.  Follow the link to read the whole speech for yourself.

Merrick Garland is a good man and a good judge, even if I don't agree with him on some very important questions.  On a personal level, it is unfortunate that his nomination was scuttled on political grounds.  But judicial nominations are never based purely on merit.  (No, not even -- especially not -- in states that have so-called "merit selection," where the state bar has a stranglehold on nominations.)  Learned Hand and Henry Friendly never made the Supreme Court, while lesser lights were promoted over them.  Many brilliant lawyers never get appointed to the bench at all, while dimmer minds with better connections get the seats.  That's democracy, the worst form of government except for all the others.

Judge Garland and Judge Gorsuch are not similarly situated because 2016 was a presidential election year and 2017 is not.  For better or worse, the candidate who promised to appoint judges of a particular philosophy won the election, and the vacant seat is going to be filled with someone of that philosophy.   Given that, is there any good reason to block this particular nominee with the drastic action of a filibuster?  Revenge for the blocking of Judge Garland's nomination via a much less drastic action is not a good reason.  The fact that Judge Gorsuch votes for the party whose position he believes to be correct under the law, rather than skewing the law to one side or the other based on the identity of the parties, is a strong reason to vote for him.  To vote against him, much less filibuster, on that basis would be unprincipled, to use Senator Leahy's word.

Democrats have no more reason to oppose Neil Gorsuch than Republicans had to oppose Sonia Sotomayor or Elena Kagan.  Most voted no, but they didn't filibuster, and enough voted yes to make around 2/1 votes for confirmation.
The U.S. Supreme Court today denied certiorari in the case that sought to block implementation of the "fast track" for the processing of federal habeas corpus petitions by state death-row inmates.  See the docket for Habeas Corpus Research Center v. U.S. Dept. of Justice, No. 16-880.  The Ninth Circuit threw the case out a year ago, holding that the District Court had no jurisdiction to issue the injunction that it did.  See this post from last March.

The law firm of Orrick, Herrington & Sutcliffe has been representing the interests of murderers against those of victims and law-abiding people contra bono publico in this case as well as the Proposition 66 case.  One can only wonder if America has completely run out of deserving poor people to represent pro bono, given how many blue chip firms are devoting their unpaid representation hours to the interests of people who thoroughly deserve the fate they are facing and who are in their present situation solely because they chose, as an act of free will, to take the life of an innocent person.

In retrospect, though, Orrick did actually achieve something "for the public good."  As a result of the delay they caused, the initial precedent-setting decisions in applications under Chapter 154 will be rendered by a Department of Justice headed by Jeff Sessions rather than Eric Holder or Loretta Lynch.  In the long run, that may well be worth the delay.

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Florida Prosecutor Refuses to Seek Death Penalty:  Florida's Governor has reassigned a case involving the recent murder of a police officer after a State Attorney refused to seek the death penalty.  Fox News reports that the prosecution of Markeith Loyd, for the January 9 murders of Orlando Police Lt. Debra Clayton and his pregnant girlfriend Dade Dixon, was reassigned today after State Attorney Aramis Ayala announced that she would not seek a death sentence for Loyd.  In a statement Thursday Ayala said that the death penalty has led to "chaos, uncertainty and turmoil,"  and was not "in the best interest of the community or the best interest of justice."  Governor Scott differed, "These families (of the victims) deserve a state attorney who will aggressively prosecute Markeith Loyd to the fullest extent of the law and justice must be served." 

AZ High Court Upholds Death Penalty:  In a decision announced Wednesday, the Arizona Supreme Court unanimously rejected a broad challenge to the state's death penalty law.  The Arizona Capitol Times reports that the challenge was included in the direct appeal of gang member Abel Daniel Hidalgo, who was sentenced to death for the 2001 contract killing of auto-body-shop owner Michael Cordova and the murder of upholsterer Jose Rojas because he happened to be there when Cordova was killed.  Hidalgo had also received two life sentences in federal prison for the 2002 drug-related murders of two women in Idaho.  In his appeal of his Arizona death sentence Hidalgo claimed that state law did not sufficiently narrow eligibility for a death sentence.    

The Gorsuch Scandal

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The ever-reliable New York Times has unearthed documents showing that, twelve years ago, Supreme Court nominee Neil Gorsuch supported the harsh interrogation policies of the Bush Administration.

The Times' article has a breathless quality to it, but there's a problem with its outrage: At the time, Gorsuch was Principal Deputy Associate Attorney General.  In other words, as one-time Acting AG Peter Keisler notes  --  in a quotation placed far down the article  --  Gorsuch, "helped shape arguments and litigation strategy but not the underlying national security policy decisions, which 'had already been made'...These are cases he was working on as an attorney for [his client] and advancing its positions."

Readers should correct me if I'm wrong, but, when a lawyer takes on the defense of a child killer, or some gruesome sex-torture murderer, doesn't the Times, together with its defense bar friends, say that the attorney is "fulfilling the highest and most honorable calling of the legal profession"?  Advancing the government's case for effectively extracting intelligence from terrorists, however, gives you dirty hands?

Welcome to the case against Judge Gorsuch.

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Two Detroit Police Officers Shot:  An unidentified suspect has been arrested in the Wednesday shooting of two Detroit police officers.  Ann Zaniewski & Bill Laitner of the Detroit Free Press report that the two veteran officers were doing a narcotics investigation in a high crime neighborhood near Wayne State University when a man they were questioning pulled a gun and opened fire.  While one officer was wounded in the neck and the other in the ankle, they were able to return fire hitting the fleeing suspect in the leg.  Had they not been wearing body armor, at least one of the officers would have likely been killed.  A massive manhunt in the west side neighborhood uncovered the wounded suspect.  The incident occurred in the same area where a Wayne State University Police Sgt. was shot and killed on November 22.  
In a post a few days ago, I noted what was advertised as a scholarly article arguing that "data-driven" analysis, assessed through the lens of law and economics, tells us that we can and should abolish prison.  I had my doubts, as did everyone who commented on the entry.

Still, legal academics, for all their zaniness, keep on keepin' on.

Today's specimen, featured (as was its predecessor) in SL&P, tells us that we can virtually abolish prison through technology.  Ankle bracelets, movement monitors, and a nifty gadget called a "conducted energy device" (which appears to be a euphemism for an electronic shock belt) would "achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection."

Where to start?

How Not To Pick a Supreme Court Justice

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Sen. Chuck Schumer, who is leading the opposition to confirming Tenth Circuit Judge Neil Gorsuch to the Supreme Court, thinks that an effective way to do so is to feature the litigants who have lost cases before Gorsuch. The stupidity and danger to the rule of law of this tack is not possible to capture in words, but Ed Whelan gives it a good try here.

The idea that we should select Justices by focusing on which side won (or lost) in the cases they heard as lower court judges is just breathtaking.  It used to be that result-orientation was exactly what you wanted to avoid in judges; now, according to the Gorsuch opposition, it's exactly what you seek.

As long as the opposition is so fond of this perverted approach, however, I hope it will also trot out the numerous killers and rapists Judge Gorsuch ruled against, thus to hasten his taking his seat on the Court.

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Jihadists Getting Religious Visas?:  Security experts and religious leaders are warning that the 5-year visa granted to non-immigrant clerics may be an avenue that Islamic extremists are using to enter the U.S.  According to Hollie McKay at Fox News, The R visa program is for non-immigrant clerics and religious workers, allowing successful applicants to stay in the U.S. for up to five years. Following the 5-year period, holders of the R visa would have the chance to pursue citizenship in the United States. Col. James Williamson, who founded a group that advocates for U.S. special forces, said the program, which was created in 1990, must be tightened because of the extent to which it makes the U.S. vulnerable to jihadi attacks.  "The administration should at least temporarily suspend this dangerous loophole in our immigration process," he said. 

Victim's Fiance says "The System Failed Us": The fiance of a women killed in a drunk driving accident with an illegal immigrant is speaking out about the deadly consequences of U.S. sanctuary policies. Fox News reports that the man behind the wheel, 45-year-old Estuardo Alvarado, was escaping the scene of a previous traffic accident on Feb. 19 just before the deadly crash, investigators said.  Since 1998, Alvarado has had multiple DUI convictions and had been sent back to Mexico five times, most recently in 2011. "Our system failed us," said Rodrigo Macias, the fiance of the victim. Macias has since become an outspoken critic of so-called "sanctuary cities" and the criminal illegal aliens they protect from federal law enforcement.

Texas Executes Murderer:  Following 26 years on death row and two sentencing trials, a convicted murder was executed in Texas on Tuesday. Jolie Mccullough of the Texas Tribune  reports  that the state carried out its fourth execution of the year, putting to death 61-year-old James Bigby. Bigby was convicted in the 1987 murders of Michael Trekell, 26, and Trekell's infant son, Jayson Kehler.  Bigby was also accused of killing Calvin Crane and Frank Johnson, but he wasn't tried in those murders. The murdered infant's mother told reporters that Bigby had mental health problems and wanted to go out in a "blaze of glory."  Bigby died for his crimes at 6:31, fourteen minutes after receiving an injection of pentobarbital.
A:  Because it comes up with stuff like this, which, to give you the spoiler, recommends that the prison population be reduced, not by 25% or 50% or 75%, but by 100%.  Yes, we should abolish prison, and come up with......uh, something.

This "analysis" stems from  --  have you heard this before?  --  a "data driven" approach, specifically that taken by the law and economics side of the house, much in vogue at the University of Chicago.  Law and economics is insightful in many ways, and I teach components of it in my course at Georgetown Law.  At some point, however, a sense of modesty must be allowed to intrude.

One of the author's concluding paragraphs leads off with this sentence:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.

Just so.  The usual name for these "alternative nonmonetary sanctions" is "jail."

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Drug Offender Arrested for Murder:  A habitual drug offender was arrested in Dayton, Ohio Monday for the murder of 20-year-old woman.  WDTN TV reports that 38-year-old Chuckie Lee was taken into custody for the shooting of Taylor Brandenburg early Sunday.  The victim was babysitting when she heard a noise at about 3:00 am, and went outside to investigate.  According to police, she was shot by Lee who had just left a nearby bar after fighting over money with a parent of one of the children Brandenburg was babysitting.  Lee had served time in prison for drug offenses and had additional convictions for drugs, assault and weapons violations. 

Sentencing Bills Criticized:  Ohio legislators are being chastised by the ACLU and defense attorneys for introducing bills to increase sentencing as reported by Jackie Borchardt at  At a recent news conference an ACLU spokesperson complained that 17 bills to increase sentences have been introduced this year.  In recent years the Ohio legislature has moved away from "tough on crime" sentencing to reduce prison overcrowding and provide alternatives to incarceration focused on rehabilitation for non-violent offenders.  It should be noted that between 2014 and 2015 violent crime increased in Ohio, including a 7.7% spike in murder, a 8.6% increase in rape and a 7% rise in aggravated assault.

Crackdown on Gun Criminals Supported in Chicago:  The Superintendent of the Chicago Police Department joined the families of murder victims to testify in support of legislation that would increase prison sentences for criminals who use guns. Jessica D'Onofrio, John Garcia and Evelyn Holmes of ABC7 report  that the bill would increase the sentences for repeat gun offenders. Right now judges can sentence repeat offenders to a range of three to 14 years for unlawful possession of a weapon, The proposed law would increase the minimum to seven years.  A mother who lost her her 20-year-old daughter and unborn granddaughter in a shooting last year said she believes that the person who killed her family was a repeat offender.  "I don't think that's the first killing he did, and it might not be the last. Until these laws are enforced there are going to be killings in Chicago," Weaver said.

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Cincinnati Police Officer Shot: A police officer was shot in Cincinnati Sunday night after responding to a report of domestic violence. WLWT5 reports that two officers were responding just after midnight Sunday. On arrival, a suspect opened fire on the police, hitting one of the officers. Police returned fire, striking the suspect multiple times. Both the officer and the suspect are undergoing surgery for their injuries.

Criminal Aliens in Texas:  A recent report from the the Texas Department of Public Safety has compiled data indicating how much crime is being committed by illegal immigrants in that state.  According to DHS status indicators, over 215,000 criminal aliens were booked into local Texas jails between June 1, 2011 and February 28, 2017.  The arrested illegals were charged with 566,000 crimes  including 1,162 homicides; 68,151 assaults; 16,678 burglaries; 68,102 drug offenses; 687 kidnappings; 40,465 thefts; 44,626 for obstructing police; 3,768 robberies; 6,098 sexual assaults; and 8,596 for illegal weapons. It is worth noting that Texas has less than half of the criminal alien jail and prison population of California, which, according to the GAO,  has over 100,000 criminal aliens incarcerated.

County Sheriffs Slam SB 54:  Several California County Sheriffs voiced their opposition to Senate Bill 54 Monday, the bill introduced by Senate President Pro Temp Keven De Leon which would make California a sanctuary state.  The sheriffs warn that the law would cost law enforcement agencies federal grants by prohibiting collaboration with federal agencies. Jazmine Ulloa at The Los Angeles Times reports that while County Sheriffs do not want to enforce immigration law, they argued that, if enacted, the law would also would restrict collaboration between law enforcement agencies at different levels of government when going after crime suspects. "If SB 54 passes, it will allow dangerous, violent career criminals to slip through the cracks and be released back into our communities," Sacramento County Sheriff Scott Jones told reporters.

Sex Offender Stopped at the Border:  Tuscon, Arizona border patrol agents have detained a man who was previously deported as an aggravated felon with sex-offender status. According to the Customs and Border Protection website, Rene Murillo-Almansa has a criminal history dating back to the 90's  when Murillo was convicted for raping a child in 1994 and sentenced to 26 months in jail and two years of probation.  Murillo was ordered removed from the U.S. last month and now faces felony immigration charges for illegal re-entry.

How To Find Out What's In Legislation

This is off topic but too good to pass up.

A few years ago, Nancy Pelosi notably told the country that the best way to find out what was in President Obama's health care bill was to pass it.  I don't think it's an exaggeration to say that this remark became a world-wide joke.

A few days ago, with no known sense of irony, Ms. Pelosi insisted that the country must first know what's in the replacement for President Obama's health care bill in order to pass it.

See the third sentence in her letter to Speaker Ryan.

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Chicago Gangs Stocking Up: Gang members on the south side of Chicago have developed the habit of breaking into rail-cars over the past few years, and occasionally, find a shipment of firearms to steal. Matt Finn at Fox News reports that The Bureau of Alcohol, Tobacco, Firearms and Explosives said that since 2013, more than 150 firearms have been reported stolen from freight trains. This may seem like a small number of firearms over a four-year-period, but a single gun can be linked to at least 14 fatal shootings, according to the ATF.  In a city like Chicago, where gun-violence is a daily concern, this train-robbing trend is a real problem. 

DA Considers DP in Dismembered Teen Case: A Pennsylvania woman along with her boyfriend, are being charged with the rape, murder, and dismemberment of her adopted 14-year-old daughter. The District Attorney will announce today whether his office will be seeking the death penalty. According to ABC 6, 42-year-old Sara Packer is scheduled for arraignment today on homicide, rape, kidnapping and other charges in last year's murder of 14-year-old Grace Packer.  Police report that after Packer watched her boyfriend Jacob Sullivan rape the girl, the two of them killed her and cut up her body.

Chicago Shootings Continue to Climb: The explosion of gun violence in the city of Chicago shows no signs stopping or even slowing down. Deanese Williams-Harris, Elvia Malagon and Megan Crepeau at the Chicago Tribune report that six more people including two teens were injured in shootings early Thursday morning. In another story from the Tribune by the same authors, reports on four more shootings resulting two more fatalities on Thursday night.  One of the victims was a well known local resident dubbed "Old Man Bill"  who hung out around the local gas station doing odd jobs for the patrons. According to a graph by the Chicago Tribune, the total number of shooting victims in Chicago for the year of 2017 has reached 587. 

Another Fake Hate Crime: 
A 21-year-old University of Michigan student pleaded guilty to falsely reporting a hate crime supposedly committed by Trump supports after the 2016 election. Jessica Schladebeck at the New York Daily News reports  that Halley Bass originally told officers that the attack on her was part of a series of hate crimes unfolding the week following the election.  She said she was targeted for wearing a safety-pin -- a make-shift accessory worn by many to show solidarity with minorities after Brexit, and then later after Trump's victory.  Now she faces the possibility of serving 93 days in jail and a $500 fine.

RoboCop Lite is Here:  The prospect of robotic helpers has long been an aspiration for the scientific community, and while the future of robotics is still uncharted, a company called KnightScope has introduced a robotic helper for the police.

Read more here:

A Story Hot off the Press

The way to convince the jury that your client's behavior wasn't arson, just an accident, is to commit arson yourself while addressing the jury and claim it was an accident.

Liar, liar, pants on.............well, you have to read it for yourself.  This goes beyond the "You Can't Make This Up" category.

The criminal defense bar continues to be the most creative entity in the history of civilization.

Since 2011, California has gone further than other states in the rapid dismantling of its tough-on-crime policies, so we have been keeping track of California crime rates as compared with the nation as a whole.  Here are graphs showing 2011 to 2015 with data from the FBI's Uniform Crime Reports.*

The "realignment" bill, AB109, took effect in October 2011, and one would not expect much effect in the first couple of months.  So we can consider 2011 to be a base year.  California shows a jump in violent crime the following year while the rate for the country as a whole was essentially flat.  California had a sharp jump in property crime for 2012, while the national rate was declining.

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Texas Court Upholds Death Penalty:  The death sentence of a Texas ex-con who murdered his wife five years ago was upheld Wednesday in an 8-1 decision by the Texas Court of Criminal Appeals.  Tommy Witherspoon of the Waco Tribune reports that Carnell Petetan Jr. had only been out of prison for a few months when he broke into his estranged wife's home and shot her dead in front of her daughter.  The victim had befriended Petetan and became his pen pal while he was serving a prison sentence for shooting two men and attacking a third with a chair when he was 16.  On appeal Petetan raised 30 claims of trial and sentencing error including that he was ineligible for execution because of a mental impairment.  While in prison for his previous crimes Petetan sexaully assaulted three other inmates and attacked guards.  

Fatal Compassion

Kristine Phillips reports for the WaPo:

In 1991, Michigan man Gregory Green stabbed his wife in the face and chest, killing her and their unborn child. Then, he called 911 and waited for police to come.

After serving about 16 years in prison for murder, Green was released on parole with the support of family and friends, including a pastor who lobbied on his behalf and whose daughter Green would marry.

"Gregory and I were friends before his mishap and he was incarcerated," Fred Harris, a pastor in Detroit, wrote to the Michigan parole board in August 2005. "He was a member of our church ... I feel he has paid for his unfortunate lack of self control and the damage he has caused as much as possible and is sorry."

"If he was to be released he would be welcomed as a part of our church community and whatever we could do to help him adjust, we would," Harris wrote again a year later.

Green was released in 2008 and later married Faith Harris. They had two daughters, Koi, 5, and Kaliegh, 4.

A heart-warming story from the Land of the Second Chance, right?  Read on.

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Another Southern California Gang Shooting: A stray bullet fired during a gang shootout Tuesday evening took the life of a woman driving home from church.  According to Fox News. Police in the San Diego area community of Escondido report that Catherine Kennedy, 55, was driving home from church when she was shot at around 9:15 p.m. Tuesday. The bullet came from gunshots fired between what authorities believed to be two opposing gang members. Catherine was struck in the head which caused her to swerve into an unoccupied vehicle.  No suspects have been arrested. 

Illegal Immigrant Charged with Beheading Mother:  North Carolina police have charged an 18-year-old illegal Honduran immigrant with the murder of his mother. According to Douglas Ernst at the Washington Times, Oliver Mauricio Funes-Machada, was arrested in Pilot on Monday shortly after he called 911. Franklin County officials who arrived at the residence found him holding the severed head of his mother, 35-year-old Yesenia Funes Beatriz Machada. If convicted, Funes-Machada may face the death penalty given the brutal nature of his mothers death.

DA Challenge to Victims Statements: Prosecutors in the Eric Frein case are seeking to have a judge bar the defense from using court allowed victims statement to unfairly bias the sentencing jury. Frein is facing charges of capital murder for the 2014 Pennsylvania sniper shootings which took the life of police Cpl Bryon Dickson and wounded Trooper Alex Douglass. Terrie Morgan-Besecker at The Times-Tribune reports that family members of the victim have been vocal about their forgiveness of Frein. Prosecutors believe that the defense may call on the family testify about their opposition of capital punishment in order to persuade the jury not to impose a death sentence. In a preemptive move, the prosecutors have petitioned the judge to disallow such testimony.  The judge has yet to rule on this motion.  

Davis Murder Suspect Was Free on Probation: A 52-year-old man with an extensive criminal history was arrested last Friday as a suspect in the death of a 37-year-old woman. Lauren Keene and Tanya Perez at the Davis Enterprise report that John Paul Johnson was taken into custody Friday around 3pm by officers responding to a report of a woman had been found deceased in her bedroom. Johnson had recently been released on probation as a low risk offender under California law.  His criminal history includes charges of petty theft, grand theft, possession of a controlled substance, battery, and the brandishing of a weapon. Johnson was arraigned Tuesday evening and now awaits trial for the charges.

Standing on Principle

Some Senate Democrats seem to be really desperate to have a special prosecutor appointed over the Russia allegations.  They are really, really hoping, I think, that a special prosecutor would be the kind of thorn in President Trump's side that Lawrence Walsh was in President Reagan's and Ken Starr was in President Clinton's.  It was that bipartisan experience that produced a bipartisan consensus that the independent counsel law be allowed to expire in 1999.

Aruna Viswanatha and Nicole Hong report for the WSJ:

President Donald Trump's nominee to be deputy attorney general on Tuesday wouldn't commit to appointing a special prosecutor to investigate any Russian interference in the 2016 presidential election, saying he wasn't in the job yet and didn't know all the facts needed to make a decision.

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Illegal Charged in Fatal Car Crash:  An illegal alien who had been deported five times, has been charged with causing a February 19 accident that killed a 42-year-old Southern California woman.  Gregory Wilcox of the Los Angeles Daily News reports that Esturado Alvarado has been charged with more than 20 felonies and misdemeanors since 1990 and, according to ICE, had been deported to Mexico five times, most recently in 2011.  The Los Angeles Police Department said that Alvarado was drunk and speeding down Sepulveda Boulevard in an SUV when he T boned Sandra Duran's Toyota Camery, killing her and injuring her son and his girlfriend.  At the time of the accident, Alvarado was fleeing from another accident he had caused.  Los Angeles is a among the most illegal immigrant-friendly cities in the U.S.  

Sex Offender Charged in 1977 Murder:  DNA has linked a Florida man, who served time in prison for sex crimes, with the 1977 rape and murder of a 16-year-old Utah girl.  The Gebhardt Daily reports that Patrick McCabe was extradited last weekend from Florida to Utah to face charges of first degree murder and aggravated sexual assault after his DNA was found on the halter top used to gag 16-year-old Sharon Schollmeyer during her rape and murder in December of 1977.  McCabe, who was the building manager for the victim's apartment at the time, has admitted that he raped and killed the girl after using his pass key to enter her apartment while she was asleep.  Her nude body was later found in a half full bathtub by her mother.  A DNA sample was taken from McCabe after he was convicted and sentenced to prison in 1999 for the sexual assault of a minor.   

Trying to Lose and Unanimously Failing

Today's SCOTUS decision in Beckles v. United States was a noteworthy win for the Justice Department.  At stake were many, many sentences handed down under guidelines language identical to statutory language in the Armed Career Criminal Act that the Court struck down as void for vagueness in the Johnson case a little less than two years ago,  Not only did the Court preserve quite a few stern sentences for dangerous characters; it held that the Guidelines, being advisory only in the post-Booker world, embody a broadly discretionary sentencing system to which applying the concept of "vagueness" makes no sense.

So this is a big win for DOJ.........................Oh, wait.  It was actually a loss for DOJ. That's because the Department's argument, prepared and presented by the Obama Solicitor General's Office, abandoned the victory the US Attorney had won in the Eleventh Circuit and took up the cause for a previously convicted felon who armed himself with a sawed-off shotgun.

Today, the Department's newly-minted but gushing embrace of the criminal won exactly zero votes.

As I've said before, Jeff Sessions can't start cleaning house too quickly.

The New McCarthyism

Marc Thiessen has this column in the WaPo:

[Attorney General Jeff] Sessions is the victim of the type of McCarthyite character assassination that the left used to condemn. Remember when accusing people without evidence of coordinating with the Kremlin was frowned upon? No longer, apparently.

Repeal and Replace

President Trump has issued this Executive Order titled, "Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States."  Section 13 provides:

Sec. 13.  Revocation.  Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Daniel Nasaw describes the differences in the old and new orders for the WSJ.

When a case becomes moot pending review, the lower court decision should be vacated and cease to have effect as precedent.  This is called the Munsingwear rule.  "The point of vacatur is to prevent an unreviewable decision 'from spawning any legal consequences,' so that no party is harmed by what we have called a 'preliminary' adjudication."  Camreta v. Greene, 563 U.S. 692, 713 (2011), quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40-41 (1950). 

In other words, the rule facilitates getting rid of bad law that can no longer be reviewed.  It also provides fodder for bad jokes about Munsingwear briefs.

The Ninth Circuit should grant rehearing en banc on the prior case, vacate as moot, and wipe that precedent off the books.  If someone wants to challenge the new order, that is a new case.

And Congress still needs to do something about venue and judge shopping.

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Released Illegal Arrested for Murder: On February 21st, The Denver Sheriff's Department defended it's decision to release an illegal immigrant from custody who was arrested for murder a few weeks later. According to Keith Coffman at Reuters, Ever Valles, 19, a Mexican national in the country illegally, was released from the Denver jail in late December.  Not long after, Valles along with another defendant was charged with the murder and robbery of a man at a light rail station. Immigration and Customs Enforcement (ICE) officials said in a statement that after Valles was arrested, it placed a detainer with the Denver County jail to hold him until its agents could take him into custody.  "The detainer wasn't honored and he was released by the jail ... without prior notification," ICE said. "Valles is a known gang member whose gang history is documented in the Colorado gang database."  Denver is a sanctuary city, which refuses to cooperate with ICE.  Tough luck for that guy at the light rail station.  

Reno PD Searches for Shooter: Reno police are currently searching for a teen in connection with the officer-involved shooting Thursday that left one Reno police officer injured. Nicole Jackson at KTVN reports that during a routine traffic stop Thursday night, a police officer pulled over a vehicle with the two suspects inside. While approaching the vehicle, shots were fired, injuring the officer, while the two suspects exited the vehicle. A shootout took place which resulted in the death of one of the suspects while the other fled on foot.
Police say the wanted suspect, Erick "Smokey" Bernal, is a known gang member and is considered armed and dangerous.

Alabama Seeks Change in Capital Sentencing:  Currently, Alabama is the only state left in the U.S. which permits a  Judge to override the recommendation of a sentencing jury in cases that involve capital punishment.  Newly introduced legislation seeks to change that. According to Anna Giarritelli at The Washington Examiner,
Republican state Sen. Dick Brewbaker, who supports the death penalty, sponsored his bill to reform a policy that he says is used much more often when judges are up for re-election in the pro-death penalty state. If the bill passes, Brewbaker intends to pursue more legislation to "strengthen the integrity" of the death penalty in Alabama, something to keep an eye on for those in support of capital punishment.

A Warning Shot on Forfeiture

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The State of Texas seized $201,100 that Lisa Leonard said was from the sale of her home and the State said was drug money.  The trial court found the latter by the preponderance of the evidence, and the State kept the money.

Is preponderance good enough?  Forfeiture exists in the twilight zone between civil and criminal law, and an argument can be made that a higher burden is required.  Justice Thomas discusses the question in his statement today in Leonard v. Texas, No. 16-122.  So does Justice Thomas think the Court should take this case up?  No:

Unfortunately, petitioner raises her due process arguments for the first time in this Court.  As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.
So anyone defending a forfeiture action in a state with a preponderance standard needs to make the due process argument all the way up the ladder.

Impeaching Jury Verdicts

After a jury has delivered its verdict and judgment has been entered, can that judgment be attacked with juror affidavits about what went on during jury deliberations?  The general rule, going far back into history, is no.  Jurors should be free to engage in uninhibited discussion of the case, without worrying about being interrogated about what was said during that deliberation.

The case of Peña-Rodriguez v. Colorado, No. 15-606, put this rule to a stress test.  In this case, the defendant was charged with "unlawful sexual contact, and attempted sexual assault on a child" for assaulting two teenage girls in a restroom.  One juror held stereotypical views of how Mexican men treat women.  Colorado adheres to the traditional strict view of the no-impeachment rule.  Does the Constitution require piercing the veil in these circumstances?  The Colorado Supreme Court said no, 4-3.  Today the United States Supreme Court said yes, 5-3.

Justice Kennedy assures us that this exception is a narrow one.  We've heard that before.
You cannot make this up:

WARREN, Ohio (WKBN) - The man accused of killing two people in Howland during a shooting on his property butted heads with the prosecutor during his arraignment on Thursday.

Nasser Hamad is facing two counts of capital murder and six counts of attempted murder charges with gun specifications.

During a hearing Thursday, Hamad questioned whether Prosecutor Chris Becker was Jewish and then accused him of threatening his son.

But it gets better.  The defense lawyer also chimed in.

I have not commented on the allegations that Attorney General Sessions had illicit contacts with the Russians, and lied about it during his confirmation hearings, because I have been around this town long enough (more than 40 years) to spot a politically-inspired concoction when I see one.  The idea that Sessions is or was a Russian collaborator  --  in essence, Benedict Arnold slyly impersonating a wahoo Alabama conservative all these years  --  is something you'd expect to read in the Onion, not the NYT (although it's getting harder to tell the difference). Same deal with the idea that the plain-spoken former state prosecutor has learned the smooth talking schtick of the defense bar.

It predictably turns out (and it didn't take that long) that the whole thing was  --  how shall I say this?  --  fake news. Vanity Fair, not known as a mouthpiece of the Republican Party, looks in detail at the allegations against Sessions and concludes:

As things clear up, we may be seeing a collapsing soufflé. And as with so many soufflés served up by the press in recent months, it emerged from the oven to oohs and ahs--this time, with me among the oohers and ahers--only to sink, first slowly, then quickly. Next, it will go into the trash, and we'll bake another. It's tiring. It's boring. And above all it's supremely damaging to the press. If you want people to believe you, then develop a reputation for believability.

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The New Check on Executive Power:    Syndicated columnist Charles Krauthammer has this piece on the emergence of state attorneys general as a force to curb the excesses of the executive branch of the federal government.  While the founders intended for Congress to serve as the check on President, he notes that Congress has allowed itself to become an increasingly subordinate branch, acquiescing its authority in order to avoid political consequences.  "Into that vacuum stepped the states. Florida and 12 others filed suit against Obamacare the day it was signed. They were later joined by 13 more, making their challenge the first in which a majority of states banded together to try to stop anything. "  The most successful effort was to block President Obama's executive order which would have legalized 4 million immigrants.  Democrats have noticed, and are  utilizing blue state AGs to block executive orders by President Trump, such as the immigration ban.    

Washington Three-Time Murderer Will Not Face DP: In Vancouver, Washington, a man being prosecuted for three counts of 1st degree murder as well as an attempt to escape from jail will not be facing capital punishment. The Washington Times reports that Brent Luyster, will plead not guilty Monday to three counts of aggravated murder, attempted murder, unlawful possession of a firearm, possession of a weapon by a jail inmate, malicious mischief and attempted escape. While multiple murder is a death penalty offense in Washington prosecutors have stated that they will not be seeking it for Luyster and instead will seek life without the possibility of parole.

MS-13 Gang Members Face Murder Charges: Two members of the notorious El Salvadorian gang MS-13 appeared in a Houston court Wednesday to face the charges of murder and kidnapping that were being brought against them. Daniela Sternitzky-Di Napoli and Brian Rogers at Chron report "Diego Hernandez-Rivera, 18, and leader of the group Miguel Alvarez-Flores, 22, also known as "Diabolico," were arrested Monday on charges of aggravated kidnapping in one case and murder in a second in the shooting death of an unidentified woman's body found earlier this month on a Houston road." As they were being tried, the two suspects were observed smiling and waving to the camera. Both of the suspects are in the country illegally, a trait that is common among members of MS-13, one of the most deadly street gangs in the United States.

As has been reported on this blog and in many other places, crime across the cities of this country has been on a tear the last two years the likes of which we have not seen for decades.  After a generation of keeping our nerve and getting tough under Bill Clinton and George Bush, we decided that the real problem is thuggish police and overcrowded prisons.  So we started down the road of policing consent decrees and retroactively lowered sentences.

Liking the results?

But wait, it gets worse.  Lots worse.
Today, the California Supreme Court decided a case of interest to all of our friends who work for the government, City of San Jose v. Superior Court, S218066:

Here, we hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act (CPRA or Act).  We overturn the contrary judgment of the Court of Appeal.
CPRA (Govt. Code §§ 6250 et seq.) is California's version of the Freedom of Information Act.  Many states have similar laws.

No big surprise here.  You can't evade the FOIA-type laws by using a private server.
Attorney General Jeff Sessions just held a news conference at which he confirmed that his answers about Russia contacts during his confirmation hearings were true answers to the questions as he understood them -- about contacts concerning the campaign or as a spokesman for the campaign and not unrelated contacts in his capacity as Senator.  However, he will recuse himself from any matters involving the Trump campaign.

Now the Senate Judiciary Committee and the full Senate need to get moving on the Deputy Attorney General nomination.  We have already seen what can happen when important decisions are made by Obama holdovers.

The WSJ has a stub of a story here, which says it will be updated as the story develops.

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MS-13 Members Charged With 7 Murders:  Several members of the vicious MS-13 gang have been indicted for the September 2016 murders of seven New Jersey high school students, including two girls who were best friends.  NBC New York reports that the brutally beaten body of 15-year-old Nisa Mickens was found in the community of Brentwood on September 13, during a six-week period when the bodies of six other Brentwood High School students were found, including Mickens' best friend Kayla Cuevas.  The MS-13 is an international Latino gang founded by Salvadorian immigrants in California, which has spread across the country with a heavy presence in Queens and New Jersey.  Many of its estimated 70,000 members are illegal aliens.  Prospective members are required to murder an opposing gang member to prove they are worthy.    

AG Sessions Speaks to State AGs

President Trump's speech yesterday confirmed that the "law-and-order candidate" will indeed be the law-and-order President.  His remarks on that topic were necessarily general, given the breadth of his address and the number of topics covered.

Earlier the same day, Attorney General Sessions spoke to the National Association of Attorneys General.  His remarks as prepared for delivery, dated the day before, are posted on the DoJ website.  Here are some excerpts.

First, let's put things in context.  Overall, crime rates in the United States remain near historic lows.  Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak in the early 1990s.  Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear.  There is no doubt that in the past four decades  -  under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training  -  we have won great victories against crime in America.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we've seen clear warning signs  -  like the first gusts of wind before a summer storm  -  that this progress is now at risk. 

The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent  - the largest one-year increase since 1991.  The murder rate increased 11 percent  -  the largest increase since 1968.  The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.

If this was a one-year spike, we might not worry too much.  But the preliminary data for the first half of 2016 confirmed these trends.  The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015.  The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.
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How soft do we have to get on our very worst criminals before people stop accusing us of being inhumane to them?  The case of Norway demonstrates that there is no limit, so we might as well not even worry about that.

As noted on this blog back in 2011, Anders Breivik's sentence of 21 years comes to about 14 weeks per life taken.  The lives of innocent people are pretty cheap in Norway if you only get 14 weeks for taking one.

Yet, as noted here last year, a Norway court found that even this outrageously lenient sentence was being executed inhumanely because Breivik's "three-room prison suite furnished with a treadmill, a refrigerator, a DVD player, a Sony PlayStation, a desk, a television, and a radio" was too isolated.

Today, Agence France-Presse reports:

Norwegian mass murderer Anders Behring Breivik has not been treated "inhumanely" by being held in isolation in prison, an Oslo appeals court has ruled, overturning a lower court judgment.

"Breivik is not, and has not, been subjected to torture or inhuman or degrading treatment," it said.

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Mississippi Shooter in Custody: A Mississippi man accused of three shootings and two murders was arrested Wednesday, bringing the multi-state manhunt to a successful close. Fox News reports that Alex Deaton, 28, has been apprehended on suspicion of his involvement in multiple shootings and carjacking, resulting in two fatalities. Deaton was captured in Kansas in the process of jumping state lines in an attempt to stay ahead of the police pursuing him.  He is suspected of February 22 strangling death of his girlfriend, Heather Robinson, 30, in Rankin County, the February 23 shooting death of Brenda Pinter in a church in Neshoba County, and the February 24 shooting of a jogger in Rankin County.

Recent Parolee Faces Robbery Charges: A man released on parole last month has been arrested on suspicion of his involvement in a robbery. According  to  Katie Sobko at North Jersey, "Jerome Farris, 37, faces charges of attempted robbery, resisting arrest and criminal possession of a controlled substance. He reportedly has 32 prior arrests and was released in February on parole for robbery. Farris was reported to have accosted a woman at an ATM, trying to take her wallet and debit card.

Eight Executions Set for April: The Governor of Arkansas signed an order Monday to schedule double executions on four separate days in the upcoming month of April. Steve Barnes at Reuters reports that Republican Governor Asa Hutchinson announced that executions will take place in pairs from April 17 to 27.  "This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims' families who have lived with the court appeals and uncertainty for a very long time," he said in a statement. Unfortunately the state is currently lacking potassium chloride, one of the three drugs preferred to the state's lethal injection process.  If the state acquires the drug, these will be the first executions in Arkansas since 2005.

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