April 2017 Archives

Prosecutors often present unsavory fellows  --  members of drug gangs, for example  -- as witnesses in drug trafficking cases.  In closing argument, they'll remind a skeptical jury that, while these witnesses might not be of the best character, you can't expect the people who know the inner workings of drug conspiracies to be the Pope.

The implication is that the Pope is a model of honesty.

Well, not exactly.
The headline of this post states the explicit policy now adopted in Baltimore.  As summarized in this entry from Prof. Berman, the State's Attorney's Office has embraced a policy of treating lawful citizens more harshly than illegal immigrants for identical conduct.

Of course, this is the same State's Attorney's Office that famously brought very serious charges, including homicide, against six police officers, and failed to prove a single one.  In one case, there was a mistrial; in the next two, an African American judge acquitted the defendants on all counts; and after that, the prosecutor gave up, having achieved her principal goal from the outset, to wit, having smeared the cops without enough evidence to persuade anyone outside of street demonstrators and arsonists of their guilt.

Welcome to Charm City.

Splitting the Ninth, Again

The idea of splitting the Ninth Circuit is in the news again.  In this article by Sarah Westwood of the Washington Examiner, based on an interview, she quotes President Trump saying he has considered the proposals to break up the Ninth.  He states that his main concern is judge-shopping.

At the WaPo, Amber Phillips writes, "So, no. President Trump cannot wave his pen and break up a federal court like he suggested he wants to do."  Phillips does not quote any language by the President saying or implying that he believes he can do that unilaterally, and there is none in Westwood's article, so I don't know where she gets that.  It would, of course, take an act of Congress.

Phillips goes on to state some reasons for not breaking up the Ninth, but she fails to recognize the best one from the President's point of view.  Breaking up the Ninth would aggravate, not ameliorate, the judge-shopping problem that is the President's foremost, and entirely legitimate, concern.

If the states with larger percentages of person of sense, such as Arizona and Alaska, were split off into a Twelfth Circuit, the remaining Ninth Circuit would be even loonier lefty than it is now.  Since plaintiffs, at present, have too much power to choose the venue, loony lefty plaintiffs would shop their suits to the even-leftier rump Ninth.

The answer to judge-shopping is venue reform, not splitting the Ninth. 

Fixing the Ninth will require a series of solid appointments over a good many years.  If President Trump serves two terms, he may make a good dent in it.  Let's hope he gives fixing the Ninth a higher priority than President Bush did.
Brent Kendall and Jess Bravin have this article at the WSJ on Justice Gorsuch's initial days at the Supreme Court.  The title of this post comes from the article subtitle.  About all they have to report so far, of course, is style during oral argument.

While the new justice's future votes and opinions remain to be seen, his early style suggests, at minimum, that he will be not just a conservative justice but a forceful one, unafraid to articulate potentially bold approaches that may or may not attract support from his colleagues.

His sole opportunity to take a meaningful action so far came off the bench, when he sided with fellow conservative justices to let Arkansas execute three inmates, though he issued no opinion. The next chance to take Justice Gorsuch's measure comes when the court delivers new opinions in the coming weeks. He will have the opportunity to author one, perhaps two, majority decisions--and as many concurring and dissenting opinions as he is eager to write.

By "the coming weeks" I assume they mean through the end of the term, which could be as late as early July.
Fox 16 News in Arkansas has this 12-minute video with its reporter Donna Terrell, a witness to last night's execution of Kenneth Williams.  Five minutes in, she says Williams' chest was going up and down, though her description is less dramatic than that of another media witness.  This lasted about four minutes, she says.  She does not say that anything she observed indicated pain.  She saw no grimacing or clenched fist, but what she saw was not the peaceful "going to sleep" that she expected.

I wonder how the witnesses are briefed on what to expect.  Movements do happen.  This article by Dr. Patty Khuly (DVM, presumably) on PetMD, regarding animal euthanasia, says:

Movement after death (such as an intake of breath) is not considered a sign of pain or incomplete euthanasia. It is common. In fact, some postmortem movement is typical. It happens because of electrical impulses remaining in the peripheral nerves of the body after brain waves have ceased.
The anti-DP crowd is wasting no time exploiting public misunderstanding, and I have no doubt they will be aided by the less objective, less professional elements of the press.  Some reporters are just in love with the term "botched execution."  Truly, deeply, passionately.  So they will jump at the chance to call any execution "botched" on the thinnest evidence.  Applying the Lenin Principle, if an execution is called "botched" often enough in the media, then it becomes "botched" in the public mind.  No factual basis required.

There is yet another report by a commission on the death penalty, this time from Oklahoma.  All you really need to know is that this commission was put together by the Constitution Project, an anti-death-penalty advocacy group that masquerades as neutral.  The one thing you can be absolutely sure of is that any group put together by the Constitution Project will have been carefully selected to produce a report in accordance with their agenda.

The Associated Press predictably swallows the group's self-serving description hook, line, and sinker:

Oklahoma is moving forward with new protocols for executing death row inmates, despite a unanimous recommendation from a bipartisan study group that a moratorium on the death penalty remain in place, the state's new attorney general said Wednesday.
"Bipartisan" in what sense?  Having both Democrats and Republicans on the panel?  That might be true, but it would be irrelevant.  Having both sides of the death penalty divide fairly represented on the panel?  I haven't seen a Constitution Project panel yet that fit that description.

Just Deserts

What punishment is appropriate for a life-sentenced killer who kills again?

According to Arkansas News Online, Kenneth Dewayne Williams was sentenced to

life without parole for the Dec. 13, 1998, kidnapping and slaying of 19-year-old Dominique Hurd, a University of Arkansas at Pine Bluff cheerleader from Fort Worth. Williams was convicted of capital murder in Hurd's death and of attempted capital murder in an attack on Hurd's boyfriend, Peter Robertson of New Jersey.

According to trial testimony, Williams abducted the couple from a Bonanza restaurant parking lot in Pine Bluff, forced them to drive to an automated teller machine to get cash and then took them to a wooded area and shot them.

And what happened next?  On Oct. 3, 1999, 18 days after beginning his prison sentence,

Williams ... escaped by hiding in a hog-slop truck that was on the prison grounds and then jumping out as the truck left the prison. He hid in a ditch and eventually made his way to [Cecil] Boren's house, where Boren was outside working in his garden. Williams stole Boren's guns, fatally shot the former warden seven times and made off with the guns and Boren's vehicle.

Williams was recaptured the next day after a high-speed chase in Missouri that resulted in the death of another driver.

Williams really should have gotten the death penalty the first time.  Kidnapping, robbery, and attempted murder on top of murder are more than sufficient aggravating circumstances.  For the second murder, the choice is even more clear.  A life-sentenced inmate is "judgment proof" from any sentence but death, as life sentences are necessarily concurrent in fact regardless of how they are sentenced on paper.  The choices of punishment for the murder of Cecil Boren are (1) death, or (2) none at all.

Option (1) is scheduled for overdue completion tonight.

News Scan

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Next AR Execution Set for Tonight:  The next Arkansas murderer facing execution this month is scheduled to received lethal injection this evening.  Mark Berman of the Washington Post reports that Kenneth Williams, 38, has filed petitions claiming he is mentally retarded and thereby ineligible for execution, and that one of the executions performed earlier this week was "botched."  The claim of a botched execution was based upon the defense attorneys assertion that when rapist/murderer Jack Jones received his injections Monday night, his lips were moving and he was "gulping for air."  Witnesses to the execution confirmed that Jones lips moved "very briefly" but there was no gulping.  Williams was serving a life sentence for an earlier murder, when in 1999 he escaped in a garbage truck.  He got off the truck in the nearby town of Grady and came upon Cecil Boren, who was working on his car.  Williams killed Boren, dragged his body into a bayou, and stole his car.  He was arrested after leading police on a high speed chase which killed a truck driver.   

ICE Arrests 76 Alien Criminals:  In a sweep conducted last week the Federal Office of Immigration and Customs Enforcement (ICE) reports that 76 criminal aliens were arrested in Florida and Puerto Rico.  Of those arrested during the enforcement action,  57 had criminal records that included felony convictions for serious or violent offenses, such as lewd & lascivious behavior, sexual battery, child sex crimes, sex offenses, aggravated assault with deadly weapon, weapons charges and drug violations. Additionally, 19 had less serious or violent violations to include; larceny, petty theft, trespass, driving under the influence, fraud, driving with no driver's license.  13 of the offenders had been previously deported.  Among them was a Bahamian citizen in Miami.  The subject has convictions from 1995 for sexual assault, burglary, robbery, kidnapping and was registered as a sex offender. The subject is currently pending removal proceedings before an immigration judge.

Yesterday, the Federalist Society hosted a teleforum discussing federal oversight of local police departments.  The link is here.  The participants were Chuck Canterbury, President of the Fraternal Order of Police, and Vanita Gupta, formerly the top civil rights prosecutor for President Obama's Civil Rights Division at DOJ.

Although the main reason offered for the unprecedented (to my knowledge) push to oversee police departments through federal consent decrees is to keep supposedly cowboy policing within constitutional bounds, that is not the only reason.  An additional but very important reason, seemingly offered to bring over conservative skeptics, is that federal supervision is needed to restore community trust in the police, thus to foster neighborhood cooperation and information sharing.  That, in turn, will produce more effective policing and lower crime.

I called in to ask about this.
Enacting pro-criminal legislation in a time of rising crime is a tough road to hoe. Still, if you're as ideologically dug in as the Brennan Center, mere inconvenient truth about the country's two year-long murder explosion is not going to get in your way.  While the spike is too big to be entirely swept under the rug, the Center makes a yeoman effort at it by, essentially, getting a bigger and more colorful rug and hoping folks will just pay attention to how pretty it is.

I tried to unmask this two-step last year in my post here.  But just this month, the Brennan Center came out with an even more determined effort to put a smiley face on the burgeoning inventory down at the morgue.  Its report is extensive: https://www.brennancenter.org/press-release/new-analysis-crime-violence-and-murder-remain-near-historic-lows.

The new two-step phrase is that murder "remains near historic lows," without getting into too much detail too soon about why we left behind the actual lows we had achieved at the end of 2014.

Fortunately, Breitbart is on the case.
While researching something else, I ran across quite a good seven-page outline summarizing how the prosecutor conducts criminal investigations and the role of the grand jury.  It's available here.

The Sanctuary City Case

Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
This section has been challenged in court as illegal and unconstitutional.

If it occurs to you that a direction from the chief executive to his subordinates that is expressly limited by its terms to actions "consistent with law" cannot possibly be illegal, congratulations, you understand law better than a federal district judge.

How Many Lies Can You Spot?

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The ACLU put out a press release today that contains the following paragraph:

Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost.  This approach has increased the jail and prison population; led to sentences that are too severe for the offenses; produced more wrongful convictions and more death sentences; and sent people with addictions, disabilities, and mental health conditions into jails and prisons who should receive treatment or other social services instead. These consequences of unchecked prosecutorial power burden people of color and the poor disproportionately.

Hence the title of this entry:  How many lies can you spot?

News Scan

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More Fatal Car Crashes From Drugs Than Alcohol:   While this should not come as a surprise to anyone paying attention, more U.S. drivers in fatal car crashes tested positive for drugs than alcohol in 2015.  Ashley Halsey III, of the Washington Post reports that data released by the Governors Highway Safety Association found that 43% of drivers in fatal accidents had been under the influence of legal or illegal drugs, while 37% were drunk.  The story also notes that the number of drivers who died in car crashes who tested positive for drugs went from 28% in 2005 to 43% in 2015.  In Colorado the number of marijuana-related traffic deaths increased by 48% after the state legalized recreational use of the drug.  No worries, the state is reportedly getting lots of tax revenue from pot sales. 

DHS to Help Victims of Alien Criminals:  The Office of Homeland Security has announced that it will begin offering services to American crime victims who were assaulted by illegal aliens.  Brooke Singman of Fox News reports that the Victims of Immigration Crime Engagement Office was opened in response to a Presidential directive.  "All crime is terrible, but these victims are unique--and often too ignored," said Homeland Security John Kelly.  "They are casualties of crimes that should never have taken place--because the people who victimized them often times should not have been in the country in the first place," he added.

Deputy AG Confirmed

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Yesterday the U.S. Senate confirmed the nomination of Rod Rosenstein to be Deputy Attorney General of the United States. The vote was 94-6, with Senators Blumenthal, Booker, Cortez Masto, Gillibrand, Harris, and Warren casting the dissenting votes. 

One can only wonder if there is anyone President Trump could possibly have nominated whom these six would have voted for.  Were they expecting him to renominate Sally Yates?

Even so, in the present poisonous atmosphere 94 votes is a very good start, and we congratulate Mr. Rosenstein and wish him well in a tough job.

An Astonishingly Asinine Prosecution

PowerLine brings us the story of what is probably the most stupid federal prosecution I ever heard of.  Its account starts:

A U.S. District Court in California has declared 75-year-old veteran Robert Rosebrock not guilty of violating federal law in a prosecution for allegedly displaying two four-by-six inch American flags above a Veterans Affairs fence on Memorial Day 2016. Rosebrock had been charged with hanging the two napkin-sized American flags on a section of the fence adjacent to the entrance to the VA facility in violation of a VA regulation prohibiting the displaying of "placards" or posting "materials" on VA property without authorization. 

This mind-blowing episode is not a case for allowing the judicial branch to intrude into charging decisions.  It is, however, a case for hiring Assistant United States Attorneys with an IQ above 60.
Last week, I commented on Justice Sotomayor's dissent in the McGehee case from Arkansas.  She said that the Supreme Court should stay the Arkansas executions to resolve a difference of opinion between federal courts of appeals regarding the availability of an alternative method of execution when an inmate claims the state's method creates an excessive risk of pain.

My comment at the time was that there was not yet a circuit split that was ripe for Supreme Court review because the decision of a Sixth Circuit panel was not yet that circuit's final word.  The court might take up the case for rehearing before the full court (en banc).

Sure enough, today the Sixth did exactly that.

Holding the Line On Finality?

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U. Tex. Law Professor Steve Vladeck has this post at SCOTUSblog on yesterday's argument in Davila v. Davis.  This is the case of a Houston gang member who wanted to get a member of a rival gang, so he opened fire with an AK-47-type weapon on a porch full of women and children having cake and ice cream at a child's birthday party.  Steve thinks Texas will prevail, and the question is how narrowly or broadly.  I was also encouraged by the argument transcript, but I am glad to have this independent, in-person observation.

After the break are the background of the case and my notes on the argument transcript.

News Scan

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Mob Swarms Rapid Transit Train:  A mob of roughly 60 juveniles swarmed Oakland Colliseum Station of the Bay Area Rapid Transit (BART), jumped the fare gates, and took over at least one train car, robbing and beating passengers.  Demian Bulwa and Michael Cabantuan of the SF Chronicle report that the incident occurred at about 9:30 p.m. Saturday, as passengers were boarding the Dublin-bound train.  As members of the mob held the doors open other streamed inside, attacking and robbing passengers of purses, cell phones, and other valuables.  A BART spokesperson said that passengers being robbed by small groups at stations are not uncommon, but that this was the first time a large mob had swarmed a train. 

Illegal Sought For Oregon Sexual Assault:  A Mexican national who had been deported is the prime suspect for the February 26 sexual assault of a 9-year-old girl.  Fox News reports that police are looking for Santiago Martinez-Flores who re-entered the U.S. following his 2001 deportation after serving two years in prison for assault.  The victim awoke in her parents Portland apartment as the man she identified as Martinez-Flores was assaulting her.  She managed to break free and run to her parents' room, but Martinez-Flores had fled before they returned.  In addition to the victim's description, physical evidence linking Martinez-Flores to the crime was found at the scene.  

More Bureaucratic Delay of CA Death Penalty:  The California Department of Corrections and Rehabilitation has won approval from a state regulatory agency to further delay the implementation of the single-drug execution protocol it announced last November.   Don Thompson of the Associated Press reports that corrections officials asked for another four months to develop lethal injection regulations after some of them were rejected by the the regulatory agency five months ago.  This is kind of like one hog asking another hog if he'd like some more slop. The announced protocol is similar to those which have been used for several years in other death penalty states, including Texas.  While the California public voted twice last November to retain and speed enforcement of the death penalty, when the Governor, Attorney General, and Legislature oppose the law, they use the bureaucracy to prevent its enforcement.   

Two of the arguments most frequently lodged against the death penalty are that executions can be botched, leading to extended, severe pain; and that surviving family members don't want the trauma either of the protracted capital legal process or the bitter, sometimes jarring experience of the execution itself.

Both arguments were made by the defense side in last night's executions, and both were, as is typically the case, phony.

Will there be any sanctions for defense counsels' deceit?  Let me ask that another way:  Short of outright perjury or helping to plan the murder of prosecution witnesses, are there ever sanctions for defense counsels' deceit?

You've heard it all before.  Hey, look, we gotta be zealous!  Besides, the actual facts don't look so hot, so what else do you expect us to do?  Honestly, you Puritanical stuffed suits just don't have an ounce of compassion.  Anyway, who can really, actually, finally know "The Truth?"

Abolitionism, Down for the Count

Arkansas carried out two executions tonight, the first time that has happened in almost 20 years, as the Washington Post observes.  It executed another murderer a few days ago.

My sense of it is that this development may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground.  This is true, I think, whether or not Arkansas succeeds in executing a fourth killer on Thursday, something that now seems likely to happen.

How Trump Can Make America Safe Again

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Conservative speakers may get shoved off campus by liberal fascists, but Heather Mac Donald, for one, and her assiduously researched views, are welcome in this space.  I commend her excellent recent article, which notes, among other things:

The most immediate goal of the Trump administration should be to change the elite-driven narrative about the criminal-justice system. That narrative, which holds that policing is lethally racist, has dominated public discourse since the fatal shooting of Michael Brown in Ferguson, Missouri, in August 2014. In response, officers are backing off of proactive policing, and violent crime is rising fast: 2015 saw the largest one-year spike in homicides nationwide in nearly 50 years. That violent-crime increase has continued unabated through 2016 and into the early months of 2017. A Trump administration official--perhaps Attorney General Sessions, or the president himself--should publicly address the question of what we expect from police officers: Do we want them to be proactive and to try to stop crime before it happens? Or do we want them to be purely reactive, responding to crime only after someone has been victimized?

The Arkansas Execution Set for Thursday

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Arkansas has two executions set for tonight (I understand that the first has now taken place).  It also has one set for Thursday.  I read for the first time a short summary of the facts in that case, and the killer, Kenneth Williams.  The New York Times reports them as follows:

Mr. Williams killed a cheerleader at the University of Arkansas at Pine Bluff in December 1998 but escaped from a maximum-security prison after a jury sentenced him to life the next year. A few miles from the prison, he fatally shot Cecil Boren, a farmer who was working in the yard while his wife was at church, and stole his truck. Mr. Williams led the police into Missouri in a high-speed chase before he crashed into a car, killing the driver. In 2005, he confessed to killing a 36-year-old man the same day he shot the cheerleader.

That would make four murders we know about, including two after he had been sentenced to life in maximum security.

Williams by himself shows not merely the error but the absurdity of the proposition that capital punishment is never warranted.  Abolitionist arguments to the contrary depend, not on different value judgments, but on whiting out reality.
You know it will be a bad day when you are arguing for the defendant in the Supreme Court and the Chief Justice quotes Professor Wayne LaFave on point against your argument.  LaFave is the author of three leading treatises on criminal law and is consistently pro-defendant on virtually all debatable questions.  So when the CJ cited him in the argument in McWilliams v. Dunn this morning, advocate Stephen Bright could do little more than stammer out a response of the "even Homer nods" variety.  See p. 13.

The underlying question is whether a defendant with a mental claim is entitled to an appointed, state-paid expert who is a partisan member of the defense team or whether a court's appointment of a neutral expert to examine the defendant and report to both sides meets the requirement of the high court's 1985 precedent in Ake v. Oklahoma.* 

Further, because this case was decided on the merits by the state courts and is now on federal habeas corpus review, the threshold question is whether the answer to the above question was "clearly established" in the defendant's favor back when the Oklahoma court decided it.  That is an easier question.  No.
I've met Justice Stephen Breyer only two or three times.  The first was 30 years ago at a meeting of interested parties (for want of a better term) concerning the about-to-become-effective federal Sentencing Guidelines.  Breyer was then a First Circuit judge and a USSC Commissioner.  I was pretty much of a nobody from DOJ, but had been in on the Guidelines' implementation.

I found then-Judge Breyer to be extremely friendly, modest, and engaging.  There was absolutely no hint of pulling rank; to the contrary, he was attentive and responsive throughout.

As a Justice, he has had occasion to consider death penalty cases.  It is now beyond sensible argument, in my view, that he's made up his mind that capital punishment is unconstitutional in all circumstances, see, e.g., this entry from SL&P. Whether he's right or wrong about that (I think he's clearly wrong), I believe the federal recusal statute, 28 USC 455, now requires that he not take part in future capital cases, including, I have a strong feeling, the one that's coming tonight about the double execution in Arkansas. 

News Scan

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Increased Immigrant Crime in Germany:  The Interior Minister of Germany has announced that crimes committed by immigrants "increased disproportionately" last year.  Reuters reports that the number of immigrants identified as criminal suspects increased by 52% in 2016, while the number of German suspects declined by 3.4%.  The Minister told reporters that "those who commit serious offenses here forfeit their right to stay here."  It was also reported that crimes motivated by Islamism increased by 13.7% in 2016.  This included the December truck massacre of 12 Christmas shoppers by a Tunisian immigrant loyal to Islamic State.

Two Arkansas Killers Face Execution Today:  The executions of Arkansas murderers Jack Jones and Marcel Williams are likely to be carried out tonight barring a last-minute stay by a state court or the U.S. Supreme Court.  Fox News reports that the Eighth Circuit Court of Appeals denied Jones' petition for a stay earlier today.  Williams' petition is pending, but both inmates were challenging the use of the execution drug midazolam, which was cleared by the courts for an execution last week.  Williams was convicted and sentenced to death for the 1994 rape and murder of 22-year-old Stacy Errickson, whom he kidnapped from a gas station.  Williams had kidnapped and raped two other women days before he murdered Errickson.  Jones was sentenced to death for the 1995 rape and murder of 34-year-old Mary Phillips and the attempted murder of her 11-year-old daughter, Lacy.  The facts of the crime and the strength of the evidence are described in this Arkansas Supreme Court decision
One undeniable legacy of the Obama administration has been the explosion of violent crime in many U.S. urban centers, a widespread increase in illegal drug trafficking and an accompanying record-setting number of fatal drug overdoses.  While the causes or even the existence of these facts are disputed by liberal/progressive political and academic leaders and their followers, it is also undeniable that the only candidate for the presidency who consistently targeted the increases violence and drugs under the Obama administration was the candidate that won the election.  While the deniers and hecklers continue their resistance, sometimes violently, the new president is working to address the pervasive crime, violence and drugs that most Americans outside of Hollywood, the beltway and academia are witnessing first hand.  Manhattan Institute scholar Heather MacDonald has laid out a game plan for the administration in a recent article in the City Journal.
In Glossip v. Gross (2015), the Supreme Court adopted the position of the plurality opinion in Baze v. Rees (2008) that a death row prisoner challenging a method of execution must show that it presents a "risk of severe pain [that] is substantial 'when compared to the known and available alternatives.' "

Justice Sotomayor dissented from the Supreme Court's decision not to grant a stay of execution and take up the Arkansas execution cases, McGehee v. Hutchison, No. 16-877, saying the high court should resolve a split of opinion in the courts of appeals as to the meaning of "available."

But is there a split?  Not really.  Not yet.

Why Now?

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In his opinion dissenting from denial of a stay in the Arkansas execution case, McGehee v. Hutchison, No. 16-8770, Justice Breyer asked rhetorically, "Why now?"  He surely meant why not later, but I think the more pertinent question is why not earlier.

Let us begin in 2012 with a bizarre opinion by the Arkansas Supreme Court.  Ten murderers on the state's death row filed suit claiming that it violated the separation of powers for the legislature to prescribe the method of execution in general terms and let the corrections department fill in the details.  Incredibly, the court bought it.  As a matter of administrative law, this is preposterous.  Legislatures regularly delegate far more fill-in-the-gaps authority to administrative agencies than this.  Every other state supreme court to consider such a claim has rejected it, as Justice Baker described in her dissent.


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One of the many controversies in the flurry of activity over the Arkansas execution of Ledell Lee was whether midazolam is a sufficient anesthetic for this purpose.  There is surprisingly little in the media reports this morning about whether it worked as intended in this case.  This story in USA Today does not mention the actual result, but the web page does have video of a television report by Marine Glisovic of KATV, a media witness to the execution.  From her report, it appears that the drugs worked as intended.

In my view, the States and the Federal Government should work to restore the supply of thiopental or pentobarbital as quickly as possible and eliminate the need for these more debatable alternatives.  Until that channel is open, though, midazolam appears to be effective when used correctly.

Selective Reporting?

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A man was arrested in Florida Wednesday for the rape and murder of a 33-year-old Chicago woman last Sunday.  The Chicago Tribune reported that the suspect, Bulmaro Mejia-Maya, is a construction worker who lived near the victim, Tiffany Thrasher.  No mention of the suspect's immigration status in the Trib.  But fortunately, in their story for Chicago's ABC7 John Garcia and Stacy Baca added that Mejia-Maya was a Mexican citizen and that ICE had issued a detainer on him, but that his immigration status was unclear.  They noted that he was wanted on drug charges in Utah and that he had pled guilty in 2013 to a battery in Florida. Probably just a pot bust in Utah and a Florida bar fight right?  You have to go to the Daily Caller to learn that the drug charge against Mejia-Maya was for cocaine and that in Florida he was initially charged with felony assault with a deadly weapon after he stabbed a man.  Instead of pleading guilty to felony charges, which would have triggered the revocation of his green card, Meija-Maya was allowed to plead guilty to misdemeanor battery and sentenced to 117 days.  Like San Francisco, Chicago is a sanctuary city.  If it  turns out that Mejia-Maya was in the U.S. illegally on a revoked green card and avoided deportation because of the Chicago's pro-illegal policy, where do you suppose it will be reported?  

Justice Gorsuch Makes the Difference

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As Bloomberg reports, Justice Neil Gorsuch's first vote in a prominent case is likely to be remembered for a long time:  "Gorsuch's First Big Supreme Court Vote Allows Arkansas Execution"

Justice Neil Gorsuch took his first major action on the U.S. Supreme Court by casting the deciding vote to let Arkansas begin executing a group of death-row inmates.

In a series of orders Thursday night, the high court cleared the state to execute Ledell Lee, one of eight convicted murderers that Arkansas has been trying to put to death before one of its lethal-injection drugs expires at the end of the month. Arkansas executed Lee minutes after the court rejected the last of his requests.

Gorsuch joined his four fellow Republican appointees -- Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito -- in the majority. They didn't explain their reasons.

The court's four liberal justices each voted to grant at least one of the requests to halt the executions. Justice Stephen Breyer said the state didn't have an adequate reason to rush.
Since the murder occurred 24 years ago, I'm not sure what "rush" Justice Breyer has in mind.

Coulter Speaking at Berkeley

Kent has noted that Ann Coulter will be speaking at Berkeley after all, the University's Chancellor now saying that he has found a "protectable venue."

I write separately about this because of the enormous importance I see in this issue.  My perception was only heightened when I attended the William F. Buckley, Jr. Program's "Disinvitation Dinner" this week in New York City, keynoted by the infamously disinvited Peter Thiel. http://www.businessinsider.com/peter-thiel-chased-off-stage-by-angry-protestors-at-uc-berkeley-2014-12

The blindness and cowardice in so many of our universities is a big part of the problem, but not the main part.  That would be the fascist bullying the universities are called upon to confront  --  but find the task so vexing because of the very ideologically-rooted, hard-edged intolerance they have bred.

The resulting thugs have a name:  Brownshirts.  We have seen them before, and we know where this leads.  It's not just that university needs to find "protectable venues." It's (1) that the university must understand that its whole campus and indeed its whole raison d'etre is to be a "protected venue," and (2) that the protection at some point is going to have to involve the use of substantial physical force against the thugs.  Brownshirts know one language, and it's time we spoke it to them.

Allowing the United States to become 1930's Germany is a price civilization cannot afford. 
Douglas Belkin and Alejandro Lazo report for the WSJ:

Officials at the University of California, Berkeley reversed course Thursday and announced they will allow conservative commentator Ann Coulter to speak at the school next month.

Chancellor Nicholas Dirks said the April 27 event was canceled because the school had received "very specific intelligence regarding threats that could pose a grave danger to the speaker, attendees and those who may wish to lawfully protest the event."

But after a search beyond "the usual venues" Dr. Dirks said in a statement that the school "identified an appropriate, protectable venue that is available the afternoon May 2."
I'm not a fan and won't be going to Berkeley for the event.  I called Ms. Coulter "cringe-inducing" on this blog some time back, and nothing since then has changed my view.  Even so, it is central to freedom of speech that we protect the cringe-inducing right along with the erudite and the eloquent.  I hope that U.C. Berkeley has sufficiently robust protection on hand to deal with the anti-free-speech "activists."  It is unfortunate that resources must be diverted for this purpose, but protection of freedom of speech is a priority, and the blame belongs squarely on those who would deny that freedom to people they simply disagree with.

News Scan

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Feds Cracking Down on MS-13:  The U.S. Attorney General and the head of the Department of Homeland Security are promising to identify and aggressively prosecute members of the brutal Salvadorian gang MS-13.  Sadie Gurman of the Associated Press reports that there are at least 10,000 members of the gang operating in the U.S.  Recently several members were arrested for the machete and baseball bat murders of several high school students and four young men in New Jersey. The former head of the Justice Department's organized crime and gang section told reporters that he believes that stricter vetting at the border is necessary to stop MS-13 members from coming into the U.S., noting some are coached to tell immigration officials they're escaping violence in their home country in order to stay.  "My own view is there has to be some correlation between lax immigration policies and replenishment of the gangs in places where they already existed," he said.

Survivalist Convicted of Killing PA Cop:    Eric Frein, the survivalist who gunned down two Pennsylvania state troopers in 2014, was convicted of aggravated first-degree murder Wednesday.  CBS News reports that Frein targeted the two officers at random and intended to kill more in order to spark a revolution.  The shootings left one officer dead and another permanently disabled. Frein was caught after a 48-day manhunt in the rugged Pocono Mountains. Prosecutors will seek the death penalty for Frein at a sentencing hearing beginning today.  

Media Bias Against the Death Penalty:  Sacramento Bee editorialist Foon Rhee penned this column on the death penalty in California after communicating with CJLF Legal Director Kent Scheidegger yesterday.  Responding to his question on whether the state was ready for frequent executions, Kent wrote: "I don't see California scheduling a rush like Arkansas did or needing to.  Also, California has no intention of using midazolam.  The four alternative drugs in CDCR's new protocol are all barbiturates, and Texas has demonstrated that the single-drug method with barbiturates is the way to go -- dozens of executions performed without significant incident.  The federal court in our method-of-execution case has already ruled that California can go ahead with that method.  We might be looking at one or two a month until the executions that have just been waiting for the method challenges to resolve have been carried out.  After that, the rate would be determined by how fast they come out of the pipeline, which includes federal court review.  The majority of Californians favor these executions being carried out, and I do not see a rate like that having any adverse effect on public support."  After reading the column one might ask, why did he even ask for Kent's opinion? 


Dead Criminals and Abatement

What happens when a convicted criminal dies while his appeal is pending?  Matt Bonesteel has this article in the WaPo on the Aaron Hernandez case.  Massachusetts follows the traditional, but stupid, rule:

The chief legal counsel to the Massachusetts Bar Association tells the Boston Globe that Aaron Hernandez's murder conviction over the 2014 shooting death of Odin Lloyd will be voided after the former New England Patriots star was found dead in his prison cell early Wednesday morning.

Hernandez was in the process of appealing his conviction at the time of his death. Because of a long-standing legal principle called "abatement ab initio" -- meaning "from the beginning" -- a person's case reverts to its status at the beginning if they die before their legal appeals are exhausted.
Appeal is not a constitutionally required part of the criminal process.  There generally were no appeals in criminal cases at the time this country was formed.  In the original Judiciary Act of 1789, Congress provided that important criminal cases would be tried before three-judge circuit courts, and their judgment was final.  There was no appeal to the Supreme Court, and habeas corpus was not available to collaterally attack the judgment of a court of general jurisdiction.

Today, all states provide appeals, and for good reason.  But if the appeal is dismissed because the defendant dies, it should be dismissed leaving the trial court judgment intact, as most dismissals of appeals do, without this special rule for dead defendants.  After all, the vast majority of convictions are valid and are affirmed if the appeal runs its course.  Our law recognizes that it is better that ten guilty go free than one innocent be punished, but after trial the ratio is a lot higher than 10/1, closer to 100/1, and there is no issue of unjust punishment remaining anyway.

News Scan

Shooting Suspect Yells "Ali Akbar":  A man arrested for the murders of three men in Fresno yesterday is also the prime suspect for the murder of a motel security guard last week.  Jim Guy of the Sacramento Bee reports that Kori Ali Muhammad was arrested uninjured after killing three men near downtown Fresno.  He faces four counts of murder, including for the April 13 killing at Motel 6.  The Fresno Chief of Police told reporters that the four men he targeted were white, and although Muhammad tweeted, "Allahu Akbar" (which translates to "Allah is greatest") prior to his arrest, he was not prepared to define the shootings as terrorist acts.

The Other Case SCOTUS is Hearing Today:  While the national media has focused on the Supreme Court's review of the Trinity Lutheran Church of Columbia, Inc. v. Comer reported here by CNN, another case before the Court, Weaver v. Massachusetts, is also worthy of mention.  As reported here by the Cornell's Legal Information Institute, the case raises the question of presumed prejudice for a structural error which arguably had zero impact on the defendant's trial or sentencing.  The answer to this question is fairly important.  The CJLF brief in the case is here, our press release is hereUpdate:  Transcript of the argument is hereUpdate 2:  Rory Little has this analysis at SCOTUSblog.

Alternative Execution Methods

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Joseph Ax and Nate Raymond have this article for Reuters on states turning to other methods of execution as the supplies of lethal injection drugs dry up. Defense lawyers say they will challenge new methods.  So?  They are challenging the old methods.  The article quotes me:

Kent Scheidegger, legal director of the nonprofit Criminal Justice Legal Foundation, which supports capital punishment, said death penalty critics had pressured drug companies into cutting off the supply of drugs, thereby causing problematic executions when states turn to inferior drugs.

Scheidegger said he favors the use of nitrogen gas as an alternative if lethal injection drugs are unavailable, noting that it is used every day by veterinarians as a way of putting animals down painlessly.

"I don't think murderers deserve a painless death, frankly," Scheidegger said. "But as far as removing obstacles from getting these sentences carried out, I think that's the way to go.
Mr. Ax evidently misunderstood me in the second paragraph.  I said the states should turn to nitrogen if they can't get barbiturates such as pentobarbital, which is used by veterinarians every day for euthanasia.  The part about veterinarians refers to the pentobarbital, not the nitrogen.  Pentobarbital is the primary ingredient of Euthasol.

Another Note on Expiration Dates

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Here is a bit of anecdotal evidence on drug shelf lives.

The picture on the left comes to us courtesy of retired DEA agent Fred Gregory.  In the 1960s, the DEA's responsibilities included checking pharmacy shelves for expired medications.  This bottle of medical heroin was "expired" over 30 years before it was pulled.  Analysis showed it to be 100% pure and potent nonetheless.

News Scan

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Facebook Killer Commits Suicide:  Steve Stephens, the man who last Sunday posted the cold-blooded murder of a 74-year old man on Facebook, killed himself during a brief police pursuit this morning.  Fox News reports that police spotted Stephens behind the wheel of his car in Erie County, PA and attempted a traffic stop.  Stephens refused to pull over and continued driving until he shot himself.  He was about 100 miles from Cleveland, where he randomly shot Robert Godwin in the head while recording the murder on his cellphone.  

Habitual Felon Arrested for Murder:  Sacramento, CA Sheriff's officers have arrested a repeat felon with two prior convictions for beating women, as the prime suspect for the murder of a young woman.  Ellen Garrison of the Sacramento Bee reports that Teris Vinson was already jail on an illegal weapons charge when he was identified as the likely murderer of 28-year-old Janet Mejia.  Mejia was reported missing on April 11 by her female roommate, who was Vinson's girlfriend.  On April 13, Mejia's body was found with gunshot wounds alongside a rural road. Vinson was convicted in 2011 and 2013 for domestic violence.  He was sentenced to two years in prison for the second conviction but it was not reported how long he actually served or whether he was released on state parole or county probation.  Under California's Public Safety Realignment (AB109) domestic violence is not classified as a violent or serious crime.  

Six Detroit Officers Shot Since October:  Two Detroit police officers were shot last Sunday, making them the 5th and 6th officers shot in the past seven months.  George Hunter of the Detroit News reports that the high number of police shootings in the motorcity is making officers feel under siege.  "This is the worst I can remember in my 23 years in law enforcement," said police officers association head Mark Diaz.  The shootings occurred near midnight as two 25-year-old officers were investigating a residential burglary.  As the officers approached the house a 19-year-old occupant armed with a shotgun opened fire, hitting both officers.  The Detroit Police Chief believes that the shooter may not have known they were police officers and was trying to defend his home.  

Remembering the Boston Marathon Murders

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The Boston Marathon murders four years ago were shocking even to those of us whose prosecution experience has shown us some of the worst in human nature. The only good thing I ever heard of to come out of it is reflected in this story from boston.com. 

Image result for martin richard

Expiration Date Follies

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The reason Arkansas is trying to rush executions is that its batch of one of the execution drugs is nearing its "expiration date."  Does something magical happen to a bottle of a drug when that precise date arrives?   Does it turn into something else at the stroke of the clock, like Cinderella's coach turning into a pumpkin?

Of course not.  Drugs have a shelf life, and the "expiration date" is the manufacturer's very, very conservative estimate of how long we can be confident, without testing, that the purity and potency of the drug has not deteriorated below acceptable limits by the passage of time alone, as long as the drug has been stored under the proper conditions.

But throwing drugs away simply because that conservative estimate date has arrived is not always required, particularly if the drug is expensive or in short supply.  See this post from 2014 and the quote from Johns Hopkins.

The Food and Drug Administration and the Department of Defense have an entire program to avoid the waste of throwing away good drugs.  It is called, logically enough, the Shelf Life Extension Program (SLEP).  Here is a PowerPoint on the program.  With testing, we can be confident that drugs will remain pure and potent beyond their nominal expiration dates, sometimes far beyond.

The Judge Did What?

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There were a couple of death penalty protests in Arkansas on Friday.  That is not unusual as an execution approaches.  But look who was among the protesters.

News Scan

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More MS-13 Victims in New Jersey:  Police suspect that the butchered bodies of four young men found last Thursday in a New Jersey RV park were more victims of the brutal MS-13 gang.   The New York Daily News reports that the victims ranging in age from 16 to 20 were killed with a sharp edged instrument.  Because of the brutality of the killings, the gang, which uses machetes and baseball bats to kill its victims, is the prime suspect.  Gang members are already in custody for the recent murders of several other New Jersey teens including two girls aged 15 and 16.  MS-13 is a Salvadorian street gang known for its brutality, which was formed in Los Angeles and has spread throughout the country.  Also, Joseph De Avila has this story in the WSJ.

Federal Judge Blocks Arkansas Executions:  A Federal District Judge issued a preliminary injunction Saturday to block the executions of two Arkansas murderers scheduled to be carried out Monday.   Alan Blinder of the New York Times reports that Judge Kristine Baker ruled that the drug midazolam, an anesthetic used to render the murderer unconscious, may not guarantee a painless execution.  The drug is one of the world's most popular sedatives, and has been used by at least six states for executions. The state had scheduled executions for seven murderers in April.  The Arkansas Attorney General has appealed the judge's ruling to the Eighth Circuit Court of Appeals. 

Eight Teens Shot at Bay Area Party:  A car pulled up to a house in Vallejo, CA early Sunday morning and opened fire on a group of roughly 50 teenagers, injuring eight.  Michael Bodley of the San Francisco Chronicle reports that a party at the house was breaking up when the brown sedan stopped and two shooters began firing randomly into the crowd.  At least two of the eight victims suffered critical injuries.  The youngest victim was 13-years old.  Police are still searching for the suspects.    
President Obama issued more sentence commutations than his twelve predecessors combined.  It might be the case, of course, that Mr. Obama is more far-sighted and humane than essentially everyone who sat in the Oval Office since WWII.  Or it might be that Obama's political constituency is more heavily invested in the notion that America is a brutal and racist country that needs a slap in the face to come to terms with its wretchedness.

A tip-off as to which of these is more likely to be the driver might be found in the fact that Obama began his clemency binge in earnest only after November 2014  -- at which point he would no longer be facing an election where voters beyond his constituency could deliver their judgment. 

But one way or the other, you can almost hear the other shoe not dropping.  That is, where is the media's curiosity about what the drug pushers given clemency are doing with it?  We were told their prison records and rehabilitation showed they would routinely become productive family men, good citizens and taxpayers.  It shouldn't be that hard to find out.  Why isn't anyone asking?
Sentencing Law and Policy has an entry today about the Sessions era at the Justice Department.  It quotes The Hill magazine, which starts off:

Attorney General Jeff Sessions has brought sweeping change to the Department of Justice. In just two months as the nation's top cop, Sessions has moved quickly to overhaul the policies and priorities set by the Obama administration....

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, said it appears Sessions is resurrecting the tough on crime policies last seen during the George W. Bush administration.  "Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed," he said.  "I don't know if he is really going to be able to persuade the department to follow his lead on this."

Where to start?

News Scan

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Inmates Build Computers, Hack Prison Network:  Inmates an Ohio prison were caught with two hidden computers they had built and used to hack into the state corrections department network.  Gisela Crespo of CNN reports that lax security at the Marion County prison allowed inmates to use parts from electronic equipment disassembled as part of a recycling program to build the computers and hide them behind ceiling panels.  The computers were connected to the state corrections network, giving inmates  access to credit cards, identity credentials,  tax forms and recipes for homemade drugs.   Inmates were also able to issue passes and gain access to restricted areas within the prison.  The Ohio Department of Corrections and Rehabilitation issued a statement assuring the public that they were taking steps to prevent this from happening again.

Suspect in Border Agent's Murder Arrested:  A drug cartel member, suspected of killing a U.S. Border Patrol agent with a gun made available by the Obama administration's Fast and Furious program was arrested in Mexico Wednesday.  William Lajeunesse and Laura Prabucki of Fox News report that Heraclio Osorio-Arellanes was captured by Mexican and U.S. agents at ranch on the Chihuahua/Sinaloa border.  Under Fast and Furious, gang members and other criminals were allowed to buy guns at Phoenix-area gun stores which the government intended to track back to Mexico.  The government was unable to track over 60% of the weapons, two of which were found at the scene of the 2010 murder of agent Brian Terry.  After refusing to turn over information on the botched program to a congressional investigation, Obama Attorney General Eric Holder was held in contempt of Congress.     

The Right Kind of Sentencing Reform

Sentencing reform advocates often point out that reform proposals, although a dud at the national level, have been adopted by any number of states, including more conservative states like Texas and Georgia.

In Alabama, certainly a conservative state, the House just approved the kind of sentencing reform I can enthusiastically support.  It was adopted, I might add, by a unanimous vote, including the votes of all the African American legislators. Here's the story:

The Alabama House overwhelmingly approved a bill Tuesday that would create harsher penalties for possessing and dealing heroin and fentanyl.  

In a 100-0 vote, the lower chamber signed off on the legislation, which orders a one-year minimum prison term for possessing heroin or fentanyl -- an opiate cheaper but much more potent than heroin. The two drugs are commonly mixed by dealers because it allows them to stretch out the heroin into more doses....

Rep. Patricia Todd, D-Birmingham, said she recently lost a family member to a heroin and fentanyl overdose. Todd said there should be more education about the dangers of the cheaper and more powerful opiate, especially on college campuses. "I don't think many of us understand how more deadly fentanyl is than heroin," she said.

The headline of this post is taken from today's excellent Wall Street Journal piece by Jason Riley, with whom I spoke on Monday.  I had known from reading his work that he understands what's actually going on out there, but now, having had the chance to talk to him, I am doubly impressed.

This is what our liberal friends don't get:  The antagonists are not the police and the Constitution.  The antagonists are police and criminals.  When you weaken the former, you strengthen the latter.  If common sense were not enough to make this clear, Baltimore's shocking, and ongoing, murder spree should, http://baltimore.cbslocal.com/2017/02/10/over-murder-a-day-in-baltimore-for-2017/. 

The attacks on Jeff Sessions as endangering African Americans are inside-out. Blacks are endangered  --  indeed they are in mortal danger  --  because of rising crime, and particularly rising murder rates.  In dozens of our biggest cities, Baltimore included, this is the real Obama "legacy."  It will save lives if Attorney General Sessions is able to make good on his determination to turn this around.

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Deported Illegal Immigrant Arrested for Sex Assault:  A Northern Virginia in-home daycare has been shut down after police arrested an illegal immigrant living there for sexually abusing a child.  Julie Carey and Matthew Stabley of NBC Washington report that Oscar Perez Rangel is suspected of sexually assaulting a 12-year-old girl at the in-home daycare operated by his girlfriend.  Fox News reports that Rangel, a citizen of Mexico, had been deported for felony convictions, including attempted robbery, use of a firearm during the commission of a felony, and illegal re-entry after removal.  He is facing charges on three counts of sexual penetration with a foreign object and two counts of aggravated sexual battery.

Cocaine Smuggling Ring Busted in Puerto Rico:  Federal Agents have broken up a drug trafficking ring operating out of the Puerto Rico's main airport.  The Associated Press reports that 26 people, including airline employees, airport staff, and restaurant workers were using bathrooms and garbage chutes to smuggle cocaine into airplanes headed to New York, Miami, Philadelphia, and Orlando.  The airplanes targeted included those operated by American, JetBlue, and Southwest airlines.  The arrests come just months after TSA security screeners and airport workers were arrested for smuggling 20 tons of cocaine into the U.S. through Puerto Rico.  

It will come as no surprise to readers that I continue to have doubts about the "ethical standards" of the legal profession, and particularly criminal defense.  I've discussed this at length before.  For present purposes, it can be summarized by saying that resolute honesty is not what you can expect, and not what you're going to get, when professional "ethics" always put the client first and everything else  -- like truthfulness  --  somewhere toward the back of the lawyering bus.

An entry on Sentencing Law and Policy today served as a reminder.  The gist of it is that one of the most vile criminals in decades, Dylann Roof, appeared to be more honest about how to present his case than his lawyers.

News Scan

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Group Claims 2,000 Executions in China:  The human rights group Dui Hua estimates that there were 2,000 executions in China last year...more than all other countries combined.  Matthew Brown of the Associated Press reports that the actual number of executions in China is a state secret but that contacts in the country helped the group come up with an estimate.  The story cites human rights activists who claim that this latest number is sharply down from 6,500 a decade ago.  Like the international incarceration rates estimated by human rights organizations every year, the execution numbers could be totally wrong.  Nobody outside of North Korea, China, Iran and a number of other closed societies has a clue how many people are killed or locked up there.   
From Michael Ramirez:

In the controversies over sentencing law, few targets have drawn more ire from the soft-sentencing crowd than mandatory minimums.  There is even an entire organization dedicated to opposing them.  But do they have as big an impact as is widely believed?  David Bjerk has this article in the Journal of Legal Studies.  Here is the abstract:

The US federal mandatory minimum sentences are controversial not only because of the length of the mandatory sentences for even first-time offenders but also because eligibility quantities for crack cocaine crimes are small compared with those for other drug offenses. This paper shows that the impact of these mandatory minimums on sentencing is quite nuanced. A large fraction of mandatory-minimum-eligible offenders, particularly first timers, are able to avoid these mandatory minimums. Moreover, despite lower eligibility thresholds for crack-related offenses, a smaller fraction of those convicted of crack-related offenses are eligible for mandatory minimums relative to those convicted of other drug offenses. Furthermore, while being just eligible for a mandatory minimum increases sentence length on average, the impact is not uniform across drug offenses. Notably, sentences for crack offenders are generally sufficiently long such that, on average, sentences for crack offenders are not impacted by eligibility for a mandatory minimum.
As Kent noted here, a liberal district judge in Baltimore rushed to implement a federal consent degree regulating the Baltimore police department notwithstanding that our newly-constituted Justice Department asked for time to review it.

Few doubt that there are sometimes abuses of police power that require federal intervention.  I was part of such intervention when I joined DOJ, and it wasn't just a consent decree, either.  But the ideological slant of the consent decrees written by Obama's Justice Department is not what the Framers had in mind when they sharply cabined federal authority, and made policing almost entirely (some say 100%) a local matter.

Sheriff David Clarke and I are quoted extensively in this LifeZette article explaining why consent degrees are problematic.  The main reason, as I noted, is that they take root in a distorted, pre-fab view that sees cops as hoodlums and criminals as victims.

News Scan

Chicago Judge Shot Outside Home:  A Chicago judge was killed and a woman was wounded in a shooting that took place outside of the judge's home early Monday morning. Elvia Malagon, Jeremy Gorner, and Megan Crepeau of the Chicago Tribune report that Associate Judge Raymond Myles, 66, and a 52-year-old woman were found outside the home around 4:50 a.m. Judge Myles reportedly received multiple gunshot wounds which ultimately lead to his death at a nearby hospital. The woman he was with received a gunshot to the leg and is being treated at Advocate Christ Medical Center. No word yet on the identity of the shooter although authorities believe that cameras installed on the exterior of the judges house may have captured the shooting.

Illegal Immigrants Shoot Up Nightclub: Three foreign nationals, two of which who have been confirmed as illegal immigrants, have been arrested in connection with a shooting at an Arkansas night club. John Binder at Breitbart reports that Illegal immigrant Carlos Hernandez-Garcia, Carlos Santos-Cortez, and 23-year-old illegal immigrant Brayan Adalid-Lozano were arrested after local police arrived on the scene of the El Azteca Night Club shooting.  Cortez was found bleeding from a gunshot wound to his stomach as police arrived at the scene.  He reported being shot at six times by an individual in a red Nissan truck. Santos reportedly stabbed someone in the neck after being attacked. The group of men are being held on a list of charges including battery, assault, and immigration violations.

SCOTUS to Hear Texas Death Penalty Appeal: The U.S. Supreme Court agreed on Monday to hear the case of a Honduran National who was sentenced to death for a murder he was convicted of committing in 1995. Jolie Mcullogh at the Texas Tribune reports that Carlos Ayestas and his counsel contend that if the jury in his trial had been aware of his cocaine addiction and unaware of his status as an illegal alien, he might not have been sentenced to death for the killing.  During the burglary of her home, Ayestas and two others bound 67-year-old Santiaga Paneque with duct tape before beating her and strangling her to death.  The defense argues that Ayestas' death sentence was improper because his trial attorney did not present evidence of his drug use and mental impairment.  
The Washington Post's lead Sunday article was about a friend and a key ally of mine in the successful effort to head off the Smack Dealers Windfall Bill, a/k/a the Sentencing Reform and Corrections Act, which went down in the last Congress without so much as getting to the floor in either chamber.

Steve Cook was at the time President of the National Association of Assistant United States Attorneys (NAAUSA).  That organization was the main whistleblower on the Obama Administration's efforts to cut sentencing for dealers in hard drugs  --  to cut sentencing notwithstanding the appalling recidivism rate such traffickers are known to have.

Steve and I were on the same side as then-Senator, now Attorney General, Jeff Sessions, who is the real hero in this fight.  I'm happy to say the news for drug pushers will only be getting worse.

Nonconsensual Consent Decree

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Scott Calvert and Aruna Viswanatha report for the WSJ:

BALTIMORE--A federal judge on Friday approved a legally binding overhaul of the Baltimore Police Department to address concerns about racially biased practices, despite repeated Justice Department requests to put the brakes on the Obama-era agreement.
The decision by U.S. District Judge James Bredar means the 227-page consent decree--finalized between the city and Obama administration days before President Donald Trump took office in January--now carries the force of law and is to be implemented under the watch of an independent monitor.
The misuse of consent decrees is a subject Congress should look into.

Adam Liptak and Matt Flegenheimer report from the parallel universe of the New York Times on the Gorsuch confirmation vote:

Friday's vote was only possible after the Senate discarded longstanding rules meant to ensure mature deliberation and bipartisan cooperation in considering Supreme Court nominees.
Here in this universe, the requirement of a supermajority to terminate debate has never been a significant factor in Supreme Court confirmations.  Abe Fortas in 1968 did not have even majority support, so while the filibuster was used it was not necessary.  All the Supreme Court nominations since then have either gone to a vote or been withdrawn when it was clear that the nominee did not have even majority support.  The number of Supreme Court nominees in American history who have been denied confirmation because they had majority support but less than the supermajority required for cloture is precisely zero.

News Scan

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Anti-Cop Protests at California College:  Manhattan Institute scholar Heather MacDonald was greeted by roughly 250 aggressive protesters at an address Thursday at Claremont McKenna college.  Jennifer Kabbany at the College Fix reports that the protesters effectively shut down the speech as they surrounded the building, preventing ticket holders from getting in and forcing the MacDonald to give the talk via livestream to a near-empty room as they yelled "F*ck the police" and "Black Lives Matter" and banged on windows.  MacDonald, author of the book "The War on Cops", which exposes the false narrative of racist police murdering blacks, has become a target of anti-police protesters who shouted her down at another address at UCLA earlier this week.  Protesters organized Thursday's assault on Facebook, announcing their intention to "Shut Down Anti-Black Fascist Heather Mac Donald" and suggesting she pushes "fascist ideologies and blatant anti-Blackness and white supremacy....Together, we can hold CMC accountable and prevent Mac Donald from spewing her racist, anti-Black, capitalist, imperialist, fascist agenda." 

Terrorist Runs Down Crowd in Stockholm:  Five people are reported to have died from a terrorist attack on shoppers at a crowded shopping center in Stockholm Thursday.  The Daily Mail reports that a hijacked beer truck drove into the crowed at about 3:00 PM and burst into flames after crashing into a building.  Three men exited the truck and and began to shoot and attempt to stab the stunned shoppers.  Police subdued and arrested two of the attackers but one escaped but was later caught and arrested after a manhunt.  Police reported that armed terrorists were also seen running into the city's central railway station opening fire.  Two people at the station were reportedly stabbed, and the station was shut down.  Prime Minister Stefan Löfven said everything pointed to the incident being a terror attack.  Last February, President Trump was widely panned in the media for saying that crime has increased in Sweden after admitting thousands of middle eastern immigrants.  A conflicting story in the Express quotes journalist Amy Horowitz warning that if Sweden did not change its (immigration) policy soon, then they will have to prepare for "social unrest and terrorism just like in France and Belgium".

Justice Gorsuch

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No surprise, the Senate has confirmed the nomination of Neil Gorsuch to the Supreme Court.  The final vote was 54-45:  51 Republicans plus Senators Joe Manchin (WV), Heidi Heitkamp (ND), and Joe Donnelly (Ind.).  Senator Isakson (Ga.) did not vote for some reason.  Not sure why.

The two DIABNs* voted no.

Naftali Bendavid has this story in the WSJ.

Gorsuch Confirmed

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The Senate this morning voted to confirm Judge Neil Gorsuch to the Supreme Court to fill the seat left open by Justice Scalia's death 14 months ago.  All the Republicans and three Democrats (Manchin, Heitkamp and Donnelly) voted for confirmation, with one Republican absent due to illness.

Democrats sharply criticized their Republican colleagues for refusing to seat Judge Merrick Garland, a man well qualified by traditional criteria but who would have swung to the left what had been, for the most part, an ideologically balanced Court. Yet those same Democrats voted to refuse to seat Neil Gorsuch, whose qualifications were at least as good as Garland's, and who is likely to restore the balance that had been there for years with Justice Scalia.  They will then complain about how it was only Gorsuch's backers who were political hacks.

Senate Eliminates SCOTUS Filibuster

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By a straight party line vote, the Senate has eliminated the filibuster for SCOTUS nominees, who can now be confirmed with a simple majority.  Judge Gorsuch will therefore be confirmed tomorrow at about 7 pm and, I am told, will be sworn in as a Justice of the Supreme Court about an hour later.  I believe the confirmation vote will be somewhere from 52-48 to 55-45, depending on the decisions of Sens. Manchin (WVA), Heitkamp (ND), and Donnelly (IND).  All are Democrats from states that voted overwhelmingly for Trump.

There are reasons to regret that it came to this, but reasons to applaud it as well. A discussion of these competing reasons would be worthwhile, but I will not undertake it here, because, for one thing, it's moot.

Democratic intransigence left Sen. McConnell no choice.  McConnell is actually a traditionalist, and in other circumstances would have been more reluctant to end the SCOTUS filibuster.  But Sen. Schumer made it clear that any nominee who did not genuflect before the race-huckstering, grievance-mongering anthem that has become modern liberalism would never get confirmed under the old rule.  (I should note here that criminals are increasingly being brought into Righteous Grievance tent).

I do not expect to agree with Justice Gorsuch in every instance any more than I agreed with Justice Scalia in every instance.  But for those looking to maintain fidelity to law and a rules-oriented approach to judging, the about-to-be Justice Gorsuch is good news indeed.


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The WSJ has live coverage of the Senate confirmation fight.  Siobhan Hughes posted about 12:30 pm EDT:

The Senate has gone nuclear, throwing out the 60-vote filibuster threshold on Supreme Court nominees. The nomination of Judge Gorsuch can now proceed with just a simple majority of 51 votes.
The final vote is expect tomorrow, Friday.

The Supreme Court's next conference day is Thursday, April 13.  Justice Gorsuch has a stack of reading to do, and Justice Kagan no longer has to answer the door if someone knocks.
The WSJ has this editorial on the looming filibuster of Judge Gorsuch's nomination to the Supreme Court and the likely use of the "nuclear option" by the Republicans.

The WSJ says, "At least 41 Democrats led by Minority Leader Chuck Schumer have also committed to filibuster Judge Gorsuch on the Senate floor, so he will need 60 votes to be confirmed."  Um, I'm pretty sure that if 41 are committed against cloture, there is no possibility of getting 60 votes.  Unless maybe we go back to the 1845 plan of breaking up Texas.

"Mr. Schumer is howling that Republicans stole this Court seat because they didn't give a vote to Merrick Garland last year."  I previously noted that Senator Biden said he was prepared for exactly the same kind of blockade in the last year of President George H.W. Bush's presidency.  But wait, there's more.

This story in Politico from July 27, 2007 reported:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President [George W.] Bush "except in extraordinary circumstances."

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Parolee Car Jacking: A Bronx man has been arrested for multiple car jackings at gunpoint. Dray Clark of ABC News reports that 27-year-old Clarence Brooks is the prime suspect in a series of car jackings and shootings that took place on Tuesday. Brooks reportedly shot the driver of the first car he stole and fled the scene, doing the same in a second incident. Brooks will be charged with attempted criminally negligent homicide as well as multiple counts of strong-arm robbery. At the time of the shootings, Brooks was out on parole for recent robbery charges and was already facing charges from a March 21 arrest for being a felon in possession of a weapon and reckless endangerment.

Florida Prosecutor Seeking the Death Penalty: A Florida prosecutor says that he will be seeking the death penalty in the case of a man who is being charged with the murder of his pregnant girlfriend and a police officer. According to Fox News, State Attorney Brad King filed notice of intent Monday to seek the death penalty in the case of Markeith Loyd. Loyd was arrested after a week-long manhunt in January following the murder of his pregnant ex-girlfriend Sade Dixon and the slaying of an Orlando police officer Lt. Debra Clayton. The current Orlando State Attorney Aramis Ayala announced her unwillingness to seek capital punishment in this case or any other, so Gov. Rick Scott reassigned this and 21 other cases to a nearby circuit where King could deal with them.  According to this story in Politico, liberal hedge fund billionaire George Soros pumped nearly $1.4 million in to Ayala's campaign to elect her last November. 
Chicago Man Charged in Quadruple Homicide: Charges have been filed in connection with a quadruple homicide that took place in Chicago last Thursday. Jeremy Gorner of the Chicago Tribune reports that 19-year-old Maurice Harris has been charged with four counts of first degree murder according to Chicago police reports. This event accounts for four of the seven lives lost on Thursday. The police are still attempting to discern whether all of these deaths may have been connected, but it is believed that this quadruple homicide was in retaliation for a gangland shooting that had taken place the night before.

Stupid Gets Stupider

I noted here that a Democratic filibuster of Judge Neil Gorsuch would be stupid. Gorsuch is well qualified ("very well qualified," according to the distinctly non-conservative ABA); he has proven to be independent-minded (perhaps more so than I, strictly as an advocate, would prefer); and he is the least doctrinaire candidate that President Trump can be expected to nominate if, as seems probable, he has at least one more vacancy to fill.

None of this is exactly a secret; indeed, I think it's known all over town. Notwithstanding, the Democrats are now going to go forward with their filibuster.

They will thus unite Republicans while dividing their own party; pave the way for a more conservative Supreme Court than we probably otherwise had coming; paint themselves as dead-end partisan just when they had Mr. Trump in the corner; and possibly open the door to ending the legislative filibuster just as the Republicans, for the first time in years, control both the Senate and the White House.

If any of my students were this stupid, I would recommend pursuing a different career.  Under the present circumstances, however, my recommendation for Sen. Schumer is this:  Keep on keepin' on.  Please!

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Texas Deputy Killed in Shooting: A Texas state deputy lost his life Monday morning after being shot outside of a courthouse. Fox News reports that Assistant Chief Deputy Constable Clint Greenwood, a 30-year veteran of the police force, was shot and killed outside of a Baytown courthouse Monday morning. The officer was administered aid at the scene and lifeflighted to the nearest hospital, but unfortunately the officer succumbed to his injuries. The shooter remains at large.

NY Cop-Killer Sentenced to Life: The man convicted of killing New York police officer, Randolph Holder, during a chase in October of 2015 has been sentenced.  Katherine Creag at NBC New York reports that career criminal, Tyrone Howard, has been sentenced to life in prison with no chance of parole. Holder and his partner were responding to reports of shots fired as Howard had been involved in a gunfight with rival drug dealers just before he was confronted by the two officers. He stood before a courtroom packed with 150 New York police officers Monday as he was sentenced for the murder of the 5-year veteran officer.

NYPD Upholds Immigration Enforcement: Reports from Fox News state that the New York Police Department has chosen to go against Mayor DeBlasio's vow to keep New York a sanctuary city. The NYPD reportedly informed ICE agents about upcoming court dates in which known illegal immigrants would be facing criminal charges which allowed ICE to be present for those dates and then take the coinciding criminals into custody. An NYPD administrative aide noted that ICE was contacted about the arrest of David Gonzalez, 51, on March 2 and Milton Chimborazo, 35, on March 15, the Daily News reported. Gonzalez, who had been previously deported, was facing misdemeanor charges for allegedly rubbing up against a woman on a subway train, while Chimborazo had a standing deportation order and was facing a burglary charge. New York City has vowed to only alert immigration officials if an illegal immigrant is accused of a violent crime.

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