June 2017 Archives

Road Rage Murder

From Crime Watch PA:

The West Goshen Police Department and the Chester County District Attorney's Office continue their investigating of the homicide of Bianca Nikol Roberson, 18, of West Chester, PA.

On June 28, 2017, at approximately 5:30 p.m., law enforcement initially responded to a report of a serious automobile accident in the area of Route 100, just north of Route 202, that resulted in the death of Bianca Nikol Roberson, who was operating a 2009 Chevrolet Malibu.  Subsequent investigation revealed that Roberson suffered a gunshot wound to the head.

Law Enforcement have been interviewing numerous witnesses to the incident and have been reviewing several sources of video surveillance of the roadway and surrounding area.  Law Enforcement are requesting assistance with locating a red, possibly Chevrolet, pickup truck that was involved in the road rage incident with Bianca Roberson's vehicle and was seen fleeing from the scene.  The truck was last seen exiting Route 202 southbound, at Paoli Pike.  The driver of the truck is described as a white male, 30-40 years of age, blonde hair, and a medium build.  The West Goshen Police along with the Chester County District Attorney's Office continue to follow-up on multiple leads in the investigation.

WHAT YOU CAN DO:  If you have information on this crime, any serious crime, or wanted person, call Pennsylvania Crime Stoppers Toll Free at 1-800-4PA-TIPS.  All callers remain anonymous and could be eligible for a CASH REWARD.
Chester County is west of Philadelphia.
The House of Representatives today passed Kate's Law, H.R. 3004, toughening penalties against deported aliens who illegally reenter the county.  Text is here.  Section-by-section summary is here.  The vote was mostly on party lines, although 24 Democrats voted yes and 1 Republican voted no.

The House also passed the No Sanctuary for Criminals Act, H.R. 3003, confirming the interpretation of existing law announced during the Obama Administration that cities that illegally forbid their employees to exchange information with immigration authorities are not eligible for Byrne grants, and it expands the ineligibility to "any other grant administered by the Department of Justice or the Department of Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization."  Text is here.  Section-by-section summary is here.  My prior post on the "sanctuary city" case is here.

The bill creates a private right of action for victims of crimes committed by persons released by state and local governments that refuse to honor detainers against those governments.  As to states, that raises an interesting sovereign immunity question.

This bill passed on a more partisan basis, with only 3 Democrats voting yes and 7 Republicans voting no.

News Scan

Pot Legal in Nevada Saturday:   Marijuana will become legal in Nevada on July 1st, but cannot be smoked everywhere in the state.  Andrew Craft of Fox News reports that while state voters passed a ballot measure making it legal to possess an ounce of pot, the debate continues regarding where it can be smoked.  State gaming regulators have barred public consumption of the drug on the Las Vegas Strip or any casino or hotel because it is still illegal under federal law and allowing its use might jeopardize gaming licenses.  Purchasers of marijuana will pay a 30-35% tax, which some legislators believe will generate millions in revenue.  State officials in Alaska expected the state to rake in $12 million in tax revenue from pot sales after it was legalized in 2015.  However only $692,929 had actually been received as of October of 2016. 

Black Market Flourishing in Colorado:  "The black market for marijuana has not gone away since recreational marijuana was legalized in our state, and in fact continues to flourish," Colorado Attorney General Cynthia Coffman said in a recent statement.  Kristen Wyatt of the Associated Press reports that a Denver grand jury recently indicted 62 people and 12 businesses in a massive pot trafficking ring which posed as a medical marijuana operation when it was actually growing and shipping the drug to other states.  "Since 2014 there has been an influx of these organized criminal groups to Colorado for the sole purpose of producing marijuana to sell in other states," said a DEA official.   Back in April, the Washington Post reported that in Colorado, the number of marijuana-related traffic deaths increased by 48% after the state legalized recreational use of the drug.   

Reckless Disregard of the Truth

Newspaper editorials are statements of opinion, but those opinions are often supported by assertions of fact.  As the saying goes, everyone is entitled to his own opinion but not his own facts.

On this blog we have often called out the New York Times editorial page for its particularly loose association with the truth.  See, e.g., this post from 2013.  NYT editorials regularly make factual assertions that seem to be pulled out of advocates' talking points.  If they do any fact-checking at all on their editorials before they print them, they are doing it exceptionally poorly.

Now Derek Hawkins reports in the WaPo that Sarah Palin has sued the NYT over false assertions of fact in an editorial.

Evolving Standards of Denial

Kent noted SCOTUSblog's end-of-Term symposium on the death penalty.  I was briefly invited to write a piece for it, then dis-invited within a matter of hours.  This may have been because the hosts wanted to avoid a surplusage of death penalty backers (I would have been the third; there are five abolitionists writing).

The symposium features what has become the usual abolitionist mix of (1) grasping at straws of hope and (2) down-in-the-mouth despair, but I admire the authors' ability to get so much written down so quickly.

The concluding paragraph of one of the entries drew my attention.  It is this:

It was around this time two years ago that Breyer made huge headlines when he wrote a dissent, joined by Justice Ruth Bader Ginsburg, calling for a wholesale re-examination of the constitutionality of the death penalty: "[R]ather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution." That basic question may not be answered any time soon, but the lesson of this term is that there may be room for some additional patching of its wounds, at least for the time being.

I think there's a problem here.
SCOTUSblog has a symposium on the U.S. Supreme Court's capital cases this term.  The index of posts is here.

My contribution is here.

News Scan

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Uber Driver Rapes Unconscious Passenger:  An habitual felon has been charged with raping a passenger who fell unconscious as he was driving her home.  Richard Winton Richard of the Los Angeles Times reports that Alaric Spence has been arrested for the June 26 kidnapping and sexual assault of the 24-year-old passenger.  After the passenger passed out in the back seat, Spence, who has five felony drug priors, drove to a motel and was caught on security video carrying her into a room.  While California law forbids hiring drivers who have had a felony conviction within seven years, in 2014 California's Proposition 47 converted most drug and property felonies to misdemeanors.  Any recent convictions Spence may have gotten for stealing a gun or TV, or transporting less than $900 worth of drugs, would not have been reported to Uber.  Earlier this month an Uber driver in the Bay Area was arrested for sexual battery of a passenger.  In April another Uber driver was arrested for the rape of a woman he picked up in Newport Beach.    

Further Issues with Brain Imaging

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Day after day it seems we are told that neurosciences will dramatically change in how we conceptualize human behavior and ultimately culpability.  As I have noted extensively in the past, there are many problems with this view.  The newest difficulty was published last year in the Proceedings of the National Academy of Sciences:

Functional MRI (fMRI) is 25 years old, yet surprisingly its most common statistical methods have not been validated using real data. Here, we used resting-state fMRI data from 499 healthy controls to conduct 3 million task group analyses. Using this null data with different experimental designs, we estimate the incidence of significant results. In theory, we should find 5% false positives (for a significance threshold of 5%), but instead we found that the most common software packages for fMRI analysis (SPM, FSL, AFNI) can result in false-positive rates of up to 70%. These results question the validity of a number of fMRI studies and may have a large impact on the interpretation of weakly significant neuroimaging results.

Jill Bleed and Andrew DeMillo report for AP:

LITTLE ROCK, Ark. (AP) -- A man yelled "Freedom!" as he crashed his vehicle into Arkansas' new Ten Commandments monument early Wednesday, nearly three years after he was arrested in the destruction of Oklahoma's monument at its state Capitol, authorities said.

The privately funded Arkansas monument had been in place outside the state Capitol in Little Rock for less than 24 hours before it was knocked from its plinth and smashed to pieces.

Michael Tate Reed, 32, of Van Buren, Arkansas, was booked in the Pulaski County jail shortly after 7:30 a.m. on preliminary charges of defacing objects of public interest, criminal trespass and first-degree criminal mischief. An arrest report lists his occupation as "unemployed/disabled."

Probably didn't do his car a lot of good, either.
A bill is working its way through the New York Senate that has this curious provision:

[E]very person who operates a motor vehicle in the state shall be deemed to have given consent to field testing of his or her mobile telephone and/or personal electronic device for the purpose of determining the use thereof while operating a motor vehicle.
Times certainly are changing.

Miller and Apprendi

As noted by Doug Berman at SL&P, yesterday the Pennsylvania Supreme Court decided the case of Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017). The court held that under the precepts of Miller v. Alabama and the Supreme Court's evolving Eighth Amendment juvenile jurisprudence, adolescents convicted of murder are entitled to a presumption of a sentence that includes parole. 

The Batts case is interesting reading on a number of fronts.  The court construes the Miller rule of permanent incorrigibility to be a finding that "there is no possibility that the offender could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives, and that the crime committed reflects the juvenile's true and unchangeable personality and character."  If the rule is going to be the sky's the limit on possible interventions and the state must show no possibility of change whatsoever during a defendant's life, then this is a ruling that proscribes juvenile LWOP sentences outright.   It is also interesting to think of a sentencing decision based largely on a defendant's personality rather than his conduct (even more so given the Supreme Court's recent cert denial in Loomis v. Wisconsin). 
exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict

SCOTUS Justice Circuit Assignments

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The U.S. Supreme Court issued a new allotment order, assigning Justices to the various circuits.  The Circuit Justice generally rules on extension requests.  Stay requests are also addressed to the Circuit Justice, though these are routinely referred to the full court when there is time to do so.

Justice Gorsuch gets the Eighth Circuit.  Justice Sotomayor keeps the Tenth.  New Justices are typically not assigned the circuits from which they came right out of the gate.  The cases they participated in need to drain out of the pipeline first.  I wouldn't be surprised to see Justice Gorsuch get the Tenth eventually, as Justice Kennedy did the Ninth.

The court also issued an orders list taking up several cases.  The only criminal case taken is a tax fraud case, Marinello v. United States.

News Scan

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Federal Court Overturns Death Sentence:  A divided panel of the Tenth Circuit Court of Appeals has overturned the death sentence of an Oklahoma man who murdered his girlfriend's husband sixteen years ago.  Sarah Stewart of NBC News4 reports that the panel ruled that the aggravating circumstance that the murder was "especially heinous, atrocious or cruel" found by the jury, was not sufficiently proven.  The court concluded that "supporting evidence is slim."  The victim was shot twice with a shotgun in his estranged wife's garage, and bled to death over several minutes.  While not mentioned in the news story, the panel's ruling was not unanimous.  According to dissenting judge Mary Beck Briscoe, "Rob Andrew correctly suspected his wife of having an affair with a man he trusted as his insurance agent.  He correctly suspected his wife and her lover of trying to wrest control of his life insurance away from him.  He correctly suspected his wife and her lover of attempting to kill him several weeks before by severing the brake lines on his car.  He confided in others that he was in fear of his life.  Having separated from his wife, Rob Andrew was murdered as he returned to the family home to pick up his children for the Thanksgiving holiday.  From the evidence, a rational juror could have concluded, beyond a reasonable doubt, that Rob Andrew had time to reflect on this cruel state of affairs before he died.  The evidence supported this aggravating circumstance..."  The Attorney General plans to appeal this ruling. 

Abolitionism Hits Bottom

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I've said a number of times, e.g., here, that the push to abolish the death penalty has, after years of making headway, probably gone as far as it's going to get. 

One way I check this is to look at the mid-year execution numbers.  As of now, the country has executed 13 killers in 2017.  That would extrapolate to a total of 26 over the year, six more than last year.  If that's the way it holds, it will be one of the few times over the last two decades that we've had more executions in one year than in the preceding year. See this graph

I also look at Supreme Court cases to see who is voting which way.  Today, Justice Kennedy voted with Justice Thomas's majority opinion in Davilla v. Davis, noted briefly by Kent here.  He did so without writing separately from Thomas's strong and disciplined analysis, just as he cast his vote without separate opinion in the Court's extremely important work in Glossip v. Gross.  It seems to me that Justice Kennedy's once seemingly skeptical view of capital punishment (see Roper v. Simmons) is not what it used to be.  It may also be worth noting that, if Justice Kennedy steps away from the Court in the near future, his replacement is likely to be a solid death penalty backer, as is  --  to add to my main point  --  the Court's youngest member, Neil Gorsuch, whose votes continue to be everything capital punishment advocates could have hoped for.

Finally, as the sickness of a skyrocketing murder rate continues to afflict the country, now into its third year, support for the strongest antidote is correspondingly likely to rise. This too is what history tells us.  --  support for the death penalty rose massively until several years after a spiraling murder rate started to decline.

SCOTUS Action This Morning

Quick takes on U.S. Supreme Court action this morning:

1.  Affirmed the Fifth Circuit in Davila v. Davis, declining to go further toward creating an endless spiral of lawyers getting new claims before the federal courts by accusing prior lawyers of incompetence.  This is a win for CJLF.  Our press release is here.

2.  Sent the cross-border shooting case of Hernandez v. Mesa back to the Fifth Circuit to reconsider in light of the Abbasi decision.  Not too much to consider since they got it right the first time and Abbasi does not in any sense move the ball in plaintiff's direction.  This is a partial win for CJLF as well.

3.  Took up the travel ban case and stayed the orders enjoining its enforcement to the extent they apply to persons with no connection to the United States.  This is a bit of a slap to the lower courts for granting preliminary injunctions that are far broader than their justification.

C&C Gets Around

Two weeks ago, I wrote in this space that Special Counsel Bob Mueller has a conflict of interest (his long friendship with a major witness and possible investigative subject, Jim Comey) that requires his recusal.  I thought the topic sufficiently important that I submitted my entry in slightly revised form to USA Today, which printed it

A colleague of mine at Georgetown Law tells me that it was mentioned in a Washington Post story the next day.  The mention was hardly prominent, coming six paragraphs from the end of a somewhat long article, but it did get my attention.

The person the Post reported was reading and tweeting about the argument first outlined on C&C has the initials DJT.

When Early Release Gets a Pass

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Generally, early release from prison is a bad idea.  The system is already laced with so much leniency that more is seldom justified.  The eye-opening Washington Post series, "Second Chance City" gives a glimpse of what leniency actually does:  It promotes crime and assures more crime victims.  Some of them will wind up beaten, raped or dead, or all three.

America is not over-incarcerated.  It is, if anything, under-incarcerated, as its astounding recidivism rates and burgeoning murder rate since 2014 show.

Still, I do not wish to be a hard-hearted man.  Even for a lifelong thug, a man so bad even his son testified against him and now has to be hidden in the federal witness protection program, there can be a case for being released before completing all eight years of his sentence.

The New York Daily News has the story.
A:  I don't know, but former Obama Administration Deputy Attorney General Sally Yates is making a pitch for the record.

She has an opinion piece in today's Washington Post.  I may go through more of it later; for now, I just want to look at the first substantive paragraph, which is regrettably representative of the deceit running through the entire piece.  Ms. Yates begins her analysis with this:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the "lock them all up and throw away the key" approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

Where to start?
Longtime death penalty abolitionist Prof. Austin Sarat has written an essay admitting what many of us have known for years:  The electorate favors the death penalty and it's not that close.  If the electorate's will is to be honored, we will keep it.  The obvious corollary is that, if it is to be ended, electoral will must be overcome.

I thought part of Prof. Sarat's essay was unusually frank.  It notes that, in deep blue California, voters last year passed Prop 66, which

...designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals - all in an effort to speed up executions....

At the same time they approved Proposition 66, California voters also defeated Proposition 62, a measure that would have ended the death penalty for murder and replaced it with life in prison without parole.

Two-thirds of Oklahoma voters supported State Question 776 in November. That question declared that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution." It opened the way for Oklahoma to employ the gas chamber, electrocution or the firing squad if lethal injection is declared unconstitutional or is "otherwise unavailable."

The Nebraska electorate, by a margin of 61 percent to 39 percent, reinstated the death penalty just one year after state legislators voted to abolish it.

But the most candid admission comes after that.

News Scan

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$1.5 Million to Michael Brown's Family:  The city of Ferguson, Missouri has settled a wrongful-death lawsuit brought by the family of Michael Brown for $1.5 million.  USA Today reports that Brown, an 18-year-old black man, was fatally shot on August 9, 2014 by a white police officer.  The national media quickly reported that Brown was shot because he was black by a racist police officer working for a racist police department, and riots ensued.  This Washington Post story on August 12, advanced the narrative that the Ferguson shooting was just another example of racist police gunning down unarmed black men.  On November 23, more riots broke out after a grand jury, which included black members, refused to indict the officer who shot Brown, finding that under the circumstances (Brown was charging the officer) the shooting was justified.  The New York Times reported in March of 2015, that after a five-month investigation, Eric Holder's Justice Department also cleared the officer, but the Department also issued a CYA report indicating that the Ferguson Police Department was racist.  

14 Cartel Members Busted In Texas:  DEA and local law enforcement agents have arrested 14 members of the Orrantia drug cartel in El Paso, TX.  Ray Bogan of Fox News reports that those arrested including the cartel's ringleader Mario Armando Orrantia.  During the arrests, agents seized 600 kilos of pot, five kilos of cocaine, seven vehicles and almost $140,000 in cash.  The DEA reported that the cartel smuggled hundreds of kilos of cocaine and marijuana into El Paso for distribution to locations including Ohio, South Carolina and Colorado.  All but two of those arrested could be sent to a federal prison for life.        
The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

News Scan

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1.4 Million Illegals Using Stolen SSA Numbers:  An audit by the U.S. Treasury Inspector General found that most illegal immigrants who pay taxes have stolen someone else's legal identity.  Stephen Dinan of the Washington times reports stolen Social Security numbers were used on an estimated 1.4 million returns filed in 2015.  The IRS tries to mark the files of fraud victims with electronic filings but it misses about half of them.  The IRS is not currently allowed to communicate with the Department of Homeland Security to identify who is using the stolen information and where they are.  Identity theft has become one of the most prevalent crimes in the U.S. with over 12 million victims annually. 

Mexico Sets Homicide Record in May:  New government statistics indicate that May was the bloodiest month in Mexico in twenty years with 2,186 reported murders.  Peter Orsi and Lisa Martine Jenkins of the Associated Press report that there have been 9,916 murders in the country during the first five months of 2017, over 2,000 more than at the same point last year.  In 2011, the Mexican government launched a military offensive against the drug cartels operating in the country.  Officials believe that this effort and ongoing wars between the cartels are responsible for the increased killings.  

Q: When Is It OK to Commit Murder?

A:  When the murder victim is a white frat boy.

If you find that repulsive, good for you.  But that's the reaction of the poisonous, race-obsessed ideology behind much of the radicalized thinking on crime now in vogue in academia and the "entertainment" industry.

I take my cue here from the recent horrible death of 22 year-old Otto Warmbier, formerly a University of Virginia student, who was returned declining and comatose from his captivity in North Korea.  He died a few days ago.  As noted in this Commentary article, "Warmbier's death at the hands of a criminal regime is perhaps the most vicious crime directed against an American citizen by [North Korean] authorities since two U.S. officers were murdered by an axe-wielding mob...in 1976. This is an offense to American dignity and sovereignty--and it is proving a revealing moment in American politics. Warmbier's capture and his fate have exposed again the utter moral perversion of the social justice left."

The following are two examples of reactions to Warmbier's treatment*  normal people could not imagine would be given by anyone with decency.  But that's because normal people don't usually read what passes for intellectual refinement on the "social justice left."

[Ed. note:  I originally said "death," but our first commenter correctly notes that Warmbier, though in captivity, was still alive when the comments were made].

Pot and Auto Accidents

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Solomon Banda reports for AP:

A recent insurance study links increased car crash claims to legalized recreational marijuana.

The Highway Loss Data Institute, a leading insurance research group, said in study results released Thursday that collision claims in Colorado, Washington, and Oregon went up 2.7 percent in the years since legal recreational marijuana sales began when compared with surrounding states.

Legal recreational pot sales in Colorado began in January 2014, followed six months later in Washington, and in October 2015 in Oregon.

"We believe that the data is saying that crash risk has increased in these states and those crash risks are associated with the legalization of marijuana," said Matt Moore, senior vice president with the institute, which analyzes insurance data to observe emerging auto-safety trends.
As always, we should avoid jumping to a conclusion based on one study, particularly a correlational study with a small sample.  The HLDI report is here.


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Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.
As my last post makes clear, I do not believe religion ought directly dictate secular criminal justice policy.  I am very much of the view, however, that it is the moral anchor of many people's view of wrongdoing, error, punishment and redemption.

One of the most insightful thinkers on these subjects is my friend Will Haun, a certain leader in the next generation of conservative legal analysts.  I want to bring you his keynote remarks at the Napa Institute Symposium on "Public Policy and our Catholic Faith," held last March.  It was sponsored in part by the Koch Foundation, an organization I often oppose on policy specifics but greatly admire for its consistent stand for freedom.

Will started out:

Thank you very much for inviting me to speak at this excellent symposium on such an important topic.  And thank you, Jenny, for such a kind introduction.  It reminds me of one of my favorite New Yorker cartoons.  Pictured in the cartoon is a towering statue of a well-dressed man boldly pointing toward the horizon.  Below the man is an inscription that says "Solider, Statesman, Author, Patriot," and then, in smaller font below, it, "But Still a Disappointment to His Mother." 

Recycled Psychobabble

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It is not out of an intent to demean religion, or any denomination thereof, that I bring you this latest recycling, for the hundredth or two hundredth time (I've lost count), of the Bible-thumping cliches of people enraptured with the notion that they have superior moral wisdom.

They don't.  Indeed, they have next to no idea of what they're talking about.

A sample from near the beginning:

"Our country's overreliance on incarceration fails to make us safer or to restore people and communities who have been harmed," said James Ackerman, CEO of Prison Fellowship Ministries, at a June 20 news conference at the National Press Club.

Well, sure, overreliance on incarceration is a bad thing (by definition), but if what Ackerman means is considerably increased reliance on incarceration, then no part of his statement is true:  The significant increase in incarceration over the last 25 years had made us far safer, and that increased safety has disproportionately benefited the communities that were harmed, if not nearly destroyed, by rampant violent crime, much of it bred by drug trafficking.

I expect pious deceit from the NYT and the NACDL, but I would have hoped for something better from a group that trades on its claim to moral superiority.

Prop. 66 Oral Argument Video

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The video of the June 6 oral argument in California's Proposition 66 case, Briggs v. Brown, is now available.  The court's argument archive page is here.  The argument is preceded by a tribute to Justice Werdegar, who is retiring this summer.  It begins 27 minutes into the video.  My 10 minutes begin at the 1:11 mark.  My day-after post on the argument is here.

Jury Nullification At Work

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How many times we have heard, mostly from libertarians, that juries should be free to disregard what they view as an unjust law, or even merely an over-reaching prosecution, to acquit a defendant even if, on the facts presented and the law given by the judge, the argument for a guilty verdict is emphatic?

The Internet is livid that a policeman was acquitted in the shooting death of Philando Castile.  The NYT has this (relatively restrained) story.

I cannot be sure, as no one outside the jury room can be sure, of the reason for this acquittal, which seems as wrong to me as it does to almost everyone commenting on it. From what I can see, even if the officer responded in panic and emotionally-charged over-reaction, he's still guilty of manslaughter.  I saw many cases over my years as a prosecutor, and the only "justification" I can discern for the outcome here is that the jury thought a police officer, always subject to mortal danger even in a "routine" traffic stop, should not be convicted no matter what.  This view may be seen by some as plausible or even compelling.  It is not the law.

This is the reason I've always argued that jurors must put aside personal views, no matter how strongly held, and follow the law, no matter how wrongheaded they think it to be. The alternative is scattershot vigilantism, the very thing civilization was developed to avoid.

Nullification fans, do you like your handiwork?

News Scan

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CA Supreme Court Upholds Death Sentence:  In a 5-2 decision announced Monday the California Supreme Court upheld the death sentence of a man who killed a Fresno jewelry store owner during a 1996 robbery.  Associated Press writer Sudhin Thanawala reports that the defendant, Vaene Siccongxxay chose a bench trial rather than a jury trial, leaving the judge to decide whether the murder during a robbery made him eligible for a death sentence.  On appeal he claimed that he should have been instructed that he was waving his right to have that decision made by a jury.  The Court held that while the judge did instruct the defendant that by choosing a bench trial he was waving his right to a jury finding in every aspect of his trial and sentencing, after which both the defendant and his attorney agreed to waive those rights, the judge still errored by not specifically saying the this included the finding of the robbery allegation. The Court found that the error was harmless.   

Half of Illegals in Oregon Jails for Sex Crimes:  In a report that may have national implications, statistics from the Oregon Department of Corrections and ICE indicate that nearly half of the illegal aliens held in Oregon jails have been arrested for sex crimes.  Paul Bedard of the Washington Times reports that the crimes involved were rape, abuse, and sodomy, with most of the defendants being held in Salem and Portland area jails.  According to researcher David Olen Cross, over 83% of the illegals held for these crimes were from Mexico.  In a related LA Times story, Los Angeles County Sheriff Jim McDonnell is taking heat for opposing a "Sanctuary State" bill moving through the state legislature which would prohibit police agencies from cooperating with Immigration officials to identify illegals in local jails for deportation.  

News Scan

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Salvadorian Held in Muslim Girl's Murder:   A 22-year-old immigrant from El Salvador was arrested Sunday for the murder of a 17-year-old Muslim girl in northern Virginia.  of the Washington Post report that the victim and a group of friends were walking to a Mosque Sunday morning when police say that a member of the group on a bicycle had an encounter with a motorist who exited his car and chased them with a baseball bat.  The first person he caught up to was Nabra Hassanen.  Her body was later found in a nearby pond. She had been beaten to death. The car and the suspect's description led police to Darwin Martinez.  While the Post neglected to mention it, the Associated Press and Fox News have reported that ICE has placed a detainer on Martinez for entering the country illegally.  

Huge Fentanyl Bust in San Diego:  Federal agents seized nearly 100 pounds of fentanyl from a car and a house in San Diego County on Monday. David Hernandez of the San Diego Union-Tribune reports that this was the largest amount of the powerful synthetic drug ever seized in the U.S.  Three people have been indicted on charges of possession with intent to distribute.  Fentanyl is up to 50 times more potent than heroin and even trace amounts can be fatal.  DEA investigators believe that the drugs were produced in Mexico and smuggled across the border for sale in the U.S.  According to the New York Times, the annual increase in fatal drug overdoses recorded last year was the highest in U.S. history.
"Are you now or have you ever been a member of the Communist Party Federalist Society?"

It's time for me to come clean.  I am a member.  I meet in an undisclosed location to back-channel judicial nominees to the Trump Administration, which bows to my orders.

Honestly, you can't make this stuff up.

P.S.  My wife is a co-founder of the Federalist Society.  This was back in the Eighties, when she was a University of Chicago law student in then-Prof. Scalia's class. I believe she was the first person he hired as a clerk when he went to the Supreme Court.  And yes, that is bragging. 
With the exception of  a seven year period from 1994-2001, public confidence in government has been dropping almost steadily since Jack Kennedy was President. It is in part for that reason that insistence on strict ethical standards in high-profile and politically-charged cases must be maintained.  As I have argued, public confidence in the Special Counsel's investigation of Donald Trump will be difficult to preserve if the present Counsel, Bob Mueller, stays on despite mounting evidence that he's close friends with his star witness (yet potential subject), Jim Comey.  See my posts here and here.

More evidence of that relationship has emerged in the views of an FBI agent who worked with both men.  The evidence is sufficiently persuasive that CNN's legal analyst has said that Mueller's remaining in his position "could be problematic."  For an outlet as hostile to Trump as CNN, that is strong language indeed.

Freezing Bivens In Place

Can and should the federal courts invent new kinds of lawsuits, creating causes of action that Congress has not authorized?  The U.S. Supreme Court's thinking on that question has evolved over the years, and it took another step today.

Courts have been creating causes of action for a very long time.  The English courts did so before there even was a Parliament as we now know it, and these are the "common law" causes of action we learned in the first year of law school.  They created common law crimes as well.

But courts do this less than they used to, and the federal courts do less than the state courts.  Many states no longer have common law crimes; the federal courts have never been thought to have the power to create them.

During Reconstruction, Congress created a cause of action for people whose constitutional rights are violated by state and local officials, but not by federal officials.  In 1971, the Supreme Court created such a cause of action under the banner of "for every wrong there is a remedy."  That was the Bivens case, involving an alleged Fourth Amendment violation by federal agents.  In the next few years, the Court expanded Bivens a couple of times to new areas, but then it stopped.

The present Supreme Court term has two cases presenting the questions of what it means to extend Bivens to a new area and whether to do so.  One of those cases was decided today by a short-handed six-Justice Supreme Court.  If the approach of the four-Justice majority is reaffirmed in the next case, then Bivens is effectively frozen in ice.  It will exist within its current scope, but it will not be extended, and nearly any variation on existing themes will be considered an extension.
The WSJ has this editorial, with the above headline and the subhead "The left would show jihadists how the cops prevent attacks."

The New York City Council is the distilled political essence of modern progressivism, which means it can be dangerous to public health and safety. This summer tourists can see more New Yorkers relieving their bladders in public thanks to the council's reduction in penalties for crimes against public order, and now the council wants to expose the city's antiterror secrets.

A new bill would require the New York Police Department to disclose and describe all "surveillance technology," which it defines as "equipment, software, or system capable of, or used or designed for, collecting, retaining, processing, or sharing audio, video, location, thermal, biometric, or similar information." The cops would have to post this information online annually and respond to public comments.

News Scan

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NY Considers Helping Terrorists:  Ninety days before utilizing surveillance technology the New York Police Department will have to post a description of how it works and how it will be used on the internet, if the city council adopts the "Public Oversight of Surveillance Technology (POST) Act.  This brilliant idea is discussed by Heather MacDonald in Sunday's City Journal.  While the proposal is billed as enhancing New York's sanctuary city credentials, MacDonald notes that it would actually impede law enforcement's ability to identify and intercept terrorists.  But supporters on the city council insist "Surveillance technology often has a disproportionate, harmful impact on communities of color."  The Brennan Center, which authored the proposal is also pushing for its adoption in Seattle and San Francisco.  

One Death Sentence Upheld, One Overturned:  As Kent noted in his post below, the U.S. Supreme Court reinstated the death sentence of Percy Hutton, who in 1986 murdered one man and shot another because of a dispute about a sewing machine. Cory Shaffer of Cleveland.com reports that the high court's per curiam opinion overturned a Sixth Circuit ruling that found a jury instruction given during the sentencing hearing caused an inadequate finding on the aggravating circumstances.  Meanwhile, the Florida Supreme Court overturned the death sentence of a double-murderer last week ruling that his attorneys failed to adequately investigate mitigating evidence which might have convinced jurors to sentence him to life.  Andrew Pantanzi of the Florida Times Union reports that in 2004 Thomas Bevel murdered a fellow drug dealer, his 13-year-old son, and attempted to murder a woman who was visiting the victims.  The woman and Bevel's girlfriend, who has also in the house during the murders, testified at the trial.  The Florida court's 4-3 ruling held that the defense attorney for the sentencing hearing should have hired a mitigation specialist to fully investigate Bevel's troubled childhood, drug abuse, and mental health problems.  A former circuit court judge who had rejected this claim wrote, "This Court should not and will not codify or institutionalize the burgeoning cottage industry of former paralegals or social workers who are ardent death penalty opponents who declare themselves to be 'mitigation experts' and demand exorbitant fees from the judicial system for doing the work that any competent paralegal or investigator could do for one-third the cost."     

Busy Decision Day at SCOTUS

Here are some quick notes on this morning's decisions from the U.S. Supreme Court.

Jenkins v. Hutton is a per curiam reversal of the Sixth Circuit for wrongly overturning a death sentence.  The Sixth misapplied the "fundamental miscarriage of justice" exception of Sawyer v. Whitley.  On a quick read, though, it appears the opinion may do more to muddy the waters about the distinction between death penalty eligibility and selection than it does to clarify them.

McWilliams v. Dunn ducks the question of whether, when a defendant qualifies for appointment of an expert under Ake v. Oklahoma, the expert must be a defense expert, not a neutral.  The court holds that the state court in this case did not meet the basic requirements of Ake.  Justice Alito's dissent blasts the majority for proceeding in this manner, ducking the question the court agreed to decide and deciding on a question it had denied review on.  I am pleased to see Justice Gorsuch joining this dissent.

Ziglar v. Abbasi, decided by a six-member court, declines to extend civil suits to suing high government officials for detention policies in the wake of 9/11.  Congress has not authorized such suits, and the court continues to decline to extend its Bivens line of cases into new territory.

Packingham v. North Carolina decides that the state went too far in banning convicted sex offenders from social media sites.  No dissent on the result.  Justice Alito, joined by the Chief Justice and Justice Thomas, concurs in the result, expressing concern about the sweeping rhetoric of the Justice Kennedy's majority opinion.  Justice Gorsuch did not participate in this case.

The next expected decision day is Thursday.
A:  Because Mueller said so publicly.

In his remarks at the White House ceremony where President Obama introduced Comey to succeed Mueller, Muller said this:

I want to commend the President for the choice of Jim Comey as the next Director of the FBI. 

I have had the opportunity to work with Jim for a number of years in the Department of Justice, and I have found him to be a man of honesty, dedication and integrity.  His experience, his judgment, and his strong sense of duty will benefit not only the Bureau, but the country as a whole. 

Here's the White House transcript

The idea that Mueller could objectively evaluate Comey  --  the chief witness to President Trump's asserted obstruction of justice in the FBI's investigation  --  is, not to put too fine a point on it, nonsensical.

But wait, there's more.

Who Would Replace Mueller?

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I argued in my USA Today op-ed that Bob Mueller is too close to his probable star witness, Jim Comey, to serve as the Special Counsel looking into President Trump's asserted conflict of interest in firing Comey, and discouraging Comey from pursuing an investigation of former National Security Adviser Mike Flynn (assuming arguendo that this happened).  As I noted, under the ethics statutes and regulations that govern officers of the Justice Department, Mueller has a long-term relationship with Comey that "may result in a personal ... conflict of interest, or the appearance thereof" (emphasis added).

While I think this language is sufficient per se to require Mueller to step aside, I also believe that, if there were any doubt, the statute should be given a broad reading in the present climate.  The country is inflamed in ways that seem increasingly to produce rancor and violence.  In this atmosphere, it's imperative that the public see that ethics rules are followed to the letter, thus to promote maximum faith in the outcome of the Special Counsel's investigation no matter what it is.  That is not realistically possible if the chief prosecutor has a years-long friendship with his main witness, and with it a strong, pre-existing opinion of his credibility.  If that happened in the investigation and prosecution of an ordinary citizen, his defense lawyer would raise the roof, and properly so. Trump deserves the same treatment the man on the street would get, not less and not more.

I have been asked who should replace Mueller.  There are several possibilities.

Associate Attorney General Rachel Brand

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Politico has an article with a short profile of Associate Attorney General Rachel Brand. I've known Rachel for years and, like a couple of Harvard Law professors quoted in the article, I'm a big fan of hers.

The occasion for the article is speculation (and that's all it is) that Deputy Attorney General Rod Rosenstein will recuse himself during the Russia investigation because he wrote the memo outlining the reasons then-FBI Director Comey should be replaced. Rachel is next in line at the Department. I tend to think this is so much space-filler, but one way or the other, DOJ benefits from having Rachel at a high level.

A taste of the article:

Brand has enjoyed a glittering career, one that marked her early for a top job at the Justice Department in a Republican administration. Raised with three siblings on an Iowa farm, she graduated from the University of Minnesota in 1995 and, three years later, from Harvard Law School.

She was active in the Federalist Society, the conservative lawyer's group that has long been a talent pool for anyone interested in serving in the administration of a Republican president or on the Supreme Court. Brand was part of the legal team representing Bush in the Florida vote recount in 2000. She went on to be hired as a Supreme Court clerk to Justice Anthony M. Kennedy before joining Bush's Justice Department. There, she helped shepherd the Supreme Court nominations of John Roberts and Samuel Alito.

CNN Tonight

I will be on CNN tonight on a panel discussing whether Special Counsel Bob Mueller is too personally close to a potential key witness, Jim Comey, to continue to serve.  I believe the panel will start at 8:30 EDT and run for perhaps half an hour.

My USA Today op-ed addressing this question is here.

UPDATE:  To anyone who inconvenienced himself or herself to watch, I apologize.  It was not anything like the discussion I thought it was going to be.

The final speaker rebutted the only point I was given the opportunity to make by saying that the personal relationship between Mueller and Comey did not matter, because it started with a professional or business contact.  That is incorrect.  Under the ethics rules, it is simply the fact of a personal relationship between the prosecutor and his witness, not its origin, that matters.  No one on the segment (all seven minutes of it) denied that Mueller and Comey are friends, or that this would cause a reasonable person to question Mueller's objectivity in evaluating Comey's prospective testimony.

News Scan

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Escaped Murderers Caught:  Two Georgia prison cellmates who escaped early Tuesday from a inmate transport bus after killing two corrections officers, have been captured in Tennessee.  Nicole Chavez of CNN reports that after sixty hours on the run convicts Ricky Dubose and Donnie Rowe were caught by an armed homeowner as they attempted to steal his car.  When officers arrived the pair were face down on the homeowner's driveway being held at gunpoint.  The manhunt covered 260 miles as the criminals stole five cars, robbed two homes and terrorized an elderly couple. The pair, who had been serving prison time for armed robbery and assault, will now be charged with the murders of the two corrections officers, a death penalty offense. 

Probationer Arrested for Selling Drugs to Students: After Claremont, CA police received a tip from high school students that two men were selling cocaine and other drugs to students at their school, a police investigation located the suspects. Ashley Ludwig of the Claremont Patch reports that during a traffic stop last Tuesday police arrested Juan Rios and Eric Culverson for  possession of illegal narcotics.  A search of Culverson's residence uncovered more drugs including Ecstasy and pills "targeted for sales to High School aged children."  Culverson, 28, had been convicted of a previous drug charge, but under AB109, California's Public Safety Realignment, he was sentenced to light supervision on probation.  Rios, 36, also a repeat offender, was driving on a suspended license and had outstanding arrest warrants.  Under current California law, it is unlikely that either drug dealer will be eligible for a prison sentence.   

News Scan

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CA Probationer Arrested With Multiple Felonies: Jaime Benjamin Garcia of Moreno Valley was arrested May 31 after officials found illegal substances in the vehicle. Trevor Montgomery of Valley News reports that Garcia was booked on suspicion of seven felonies related to weapons and narcotics possession, possession of a controlled substance, including being a felon in possession of a firearm and ammunition and multiple prior state prison enhancements. Sergeant Morovich discovered that Garcia is on PRCS probation for auto theft. After searching his car, deputies seized a loaded .375 Smith & Wesson revolver, additional ammunition and over 8 grams of methamphetamine. 

Justice Delayed: Sentenced to die in 1984 for the murder of Mary Jane Stout, John Stumpf may finally face the consequences in November 2018.   Andrew Welsh-Huggins of the AP reports that the victim's husband 87-year-old Norman Stout has been waiting over three decades for the execution of his wife's killer. In recent years, one source of delay has been legal challenges to lethal injection protocol, but in Stumpf's case the years of appeals challenging his attorney, the prosecutor, and blaming his accomplice have dragged through the courts for decades. The day of the crime, the Stouts had just finished dinner when there were two men at the door asking to use their phone; once the men entered, they announced the robbery. After regaining consciousness from shots he received from Stumpf, Stout heard the four gun shots that killed his wife; he says "I can't imagine the pain...when she was shot.  I want him to feel some pain".

Next Time, We'll Steal Something Else

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On a day when a little humor could come in handy, take a look at this story.

It is an only in Silicon Valley kind of story, as police say high-tech thieves were caught stealing thousands of dollars worth of GPS tracking devices from a Santa Clara tech company.

"These devices kind of look like cell phone chargers, so they probably thought they had some kind of street value," Roambee Corporation Co-Founder Vidya Subramanian.....

"The moment we realized they had a box of trackers, we went into recovery mode," Subramanian said. "We notified the police and equipped them to track the devices, and in about 5 or 6 hours, it was done."

Before making off with about $18,000 worth of the devices, the thieves grabbed a beer out of the fridge and cut themselves in the process, leaving fingerprints and blood evidence.

Hat tip to Prof. David Bernstein of Antonin Scalia Law School for pointing out this article, a long but illuminating study about why it's misleading to compare murder rates in the United States with those in other "developed countries."  It starts:

Much of the political thinking about violence in the United States comes from unfavorable comparisons between the United States and a series of cherry-picked countries with lower murder rates and with fewer guns per capita. We've all seen it many times. The United States, with a murder rate of approximately 5 per 100,000 is compared to a variety of Western and Central European countries (also sometimes Japan) with murder rates often below 1 per 100,000. This is, in turn, supposed to fill Americans with a sense of shame and illustrate that the United States should be regarded as some sort of pariah nation because of its murder rate.

Note, however, that these comparisons always employ a carefully selected list of countries, most of which are very unlike the United States. They are  countries that were settled long ago by the dominant ethnic group, they are ethnically non-diverse today, they are frequently very small countries (such as Norway, with a population of 5 million) with very locally based democracies (again, unlike the US with an immense population and far fewer representatives in government per voter). Politically, historically, and demographically, the US has little in common with Europe or Japan.

Just How Warped Is Legal Academia?

I ask this question because, at random, I looked at the two most recent entries on Sentencing Law and Policy.  Here they are:

US Attorney for D.C.

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Orin Kerr has this post at the Volokh Conspiracy on the reportedly forthcoming nomination of Jessie Liu for U.S. Attorney for the District of Columbia.

D.C. is a unique district.  Although Congress provided the District with its own elected government and its own state-court-like court system, it did not provide a locally chosen prosecutor.  The U.S. Attorney prosecutes both the inherently federal offenses in U.S. District Court and the "local" offenses (federal only because D.C. is a federal enclave) in the D.C. Superior Court.

The DoJ ranks of the Trump Administration are slowly filling, but it is taking a long time.

News Scan

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Crime Out of Control in Baltimore: Following eight shootings Monday that left six people dead, the Baltimore Police Commissioner, Kevin Davis, intends to flood the streets with officers.  Kevin Rector and Jessica Anderson of the Baltimore Sun report that officers will be working 12-hour shifts with every available officer on patrol.  Davis said that gun offenders in Baltimore "do not fear arrest, they do not fear a successful prosecution, and quite frankly, they don't even fear a damn guilty verdict," because they often get off lightly.  He has asked the legislature to increase the consequences for gun criminals by making the illegal possession of a firearm, which is currently a misdemeanor, a felony.  The Chairman of the legislature's Judicial Proceedings Committee has said that such legislation is "not the answer." 

Crackdown on MS-13 in New York:  Agents from Federal Immigration and Customs Enforcement (ICE) and the Department of Homeland Security are working together to round up members of the brutal MS-13 gang in the Empire State. Kaja Whitehouse of the New York Post reports that 39 members of the gang have been arrested over the past month.  Those wanted for crimes face prosecution while the rest will be deported.  The federal agencies joined with the NYPD, the Suffolk County PD and the Nassau County PD to launch "Operation Matador" a month ago.  The goal is to eliminate the gang, which has been responsible for a string of brutal murders in recent months.  

OK Sentencing Reform May Stall:  An effort to relieve prison costs in Oklahoma and change the state's sentencing process may be stalled as the deadline for passing bills is this Friday.  Aaron Brilbeck of News9 reports that the one legislator, Scott Biggs, is holding up the reforms because he wants an interim study to look for unforeseen consequences caused by the legislation.  While the Governor is opposed to the delay, Biggs wants the state to define which crimes should be classified as violent to assure that the so called non-violent offenders the reforms would spare from prison are not dangerous criminals.  

USA Today has published an op-ed I penned arguing that Bob Mueller, though a good man and a public servant of established integrity, is too close to his star witness, Jim Comey, to continue as Special Counsel. 

Under the same ethics rules that prompted the Attorney General to recuse himself from the Russia investigation  --  28 USC 528 and 28 CFR Sec. 45.2  --  Mueller should step aside, and Deputy Attorney General Rod Rosenstein should, if he be so advised, appoint a replacement. Mueller has a longtime relationship with Comey that "may result in a personal...conflict of interest, or the appearance thereof."  

For good reason, especially in a prominent investigation where public trust in government is so clearly at issue, it's more important, not less, that this high standard be rigorously obeyed.

My prior discussion of the case is here.
Kent recently noted the numerous and flagrant fabrications by an organization supporting a version of California "sentencing reform."  In the News Scan entry just before his, CJLF's staff discussed the legal settlement Rolling Stone magazine had been forced to cough up as a result of its wonderfully detailed fabrication of a rape at the University of Virginia. The made-up rapists were made-up white males.

That same day, I read a short introduction to a new book, "From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice."  Its first paragraph asserts:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.

A better example of mendacity displacing argument would be hard to conceive.

Executive Privilege or Stonewalling?

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In today's testimony, Attorney General Sessions declined to provide the substance of conversations he had with the President.  There was heated argument about this. The Democrats' point of view was that Sessions was necessarily either invoking executive privilege or simply stonewalling.

Question:  Which was it?

Answer:  Neither.  

It was the most recent iteration of an established policy grounded in separation of powers and used, quite a few times as it happens, by high officers of the Obama Administration.
Perhaps I should title this post, "Law and Economics."

The Attorney General gave his potentially explosive testimony this afternoon.  Within about an hour of the time he finished, the Dow Jones Industrial Average rallied off a two-day slump and finished at an all time high.

Is this necessarily an indication that the market was reacting to Sessions' testimony? Nope.  But it's unlikely that the market would hit a record close if it viewed developments in Congress as likely to de-stabilize the Administration.

The Attorney General's Testimony

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Attorney General Jeff Sessions' opening statement today before the Senate IntelligenceCommittee can be found after the break.
Today's News Scan notes a bill in the California Legislature to repeal what amounts to a mandatory minimum for use of a gun to commit a crime.  Last month when this bill was heard in the Senate Public Safety Committee, Michele Hanisee and Eric Siddall wrote this post for the L.A. Association of Deputy District Attorneys about the testimony in support of the bill.

Turns out the "facts" of the "poster child" case are fabricated.  Imagine that.

News Scan

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Rolling Stone Settles in Fake Rape Case:  In November of 2014 the Rolling Stone article "A Rape on Campus" by Sabrina Erdely described how seven men attending a University of Virginia frat party gang raped a co-ed named "Jackie."  T. Rees Shapiro of the Washington Post reports that the story went viral, making national headlines reinforcing the rich, arrogant, sexist, fratboy narrative which had previously fallen apart in the 2006 Duke Lacrosse case.  Then a police investigation, and a separate one by the Columbia University School of Journalism, announced that "Jackie" had lied.  No rape had occurred.  Today, UVA fraternity Phi Kappa Psi settled its lawsuit with Rolling Stone for $1.65 million.  

Two Prison Guards Killed During Escape:  A manhunt is underway in Putnam County, Georgia after two inmates on a transport bus overpowered and killed two guards and fled.  Fox News reports that both inmates are armed and are considered very dangerous.  Both inmates had been serving time for armed robbery when they overpowered the guards and shot them with their own guns.  A witness told police that the inmates were seen driving a dark green Honda.    

CA Bill Reduces Sentences for Gun Crimes:  The California Assembly Committee on Public Safety is considering a bill today that would eliminate the current sentence increase for criminals who use guns in the commission of felonies.  As the Los Angeles Times reports, SB 620 by Senator Steven Bradford (D. Los Angeles), which passed out of the state senate last month, would make the 10 year enhancement for the use of a firearm during the commission of felonies including rape, robbery and carjacking optional with the judge.  Supporters of the bill believe that removing the mandate will reduce racial disparities in sentencing.  Virtually every state law enforcement and crime victims group opposes the bill.   

My View: Mueller Is Conflicted Out

UPDATE:  An op-ed I adapted from this post was published today in USAToday. I am linking it in my entry this morning.

It's scarcely news by now that the appointment by Deputy Attorney General Rod Rosenstein of Bob Mueller to be Special Counsel to investigate possible Russian interference in the 2016 election is the Big Story in criminal law circles.

I know Mueller very slightly, having met him only once, when he was Assistant Attorney General for the Criminal Division.  From what I know of his reputation, he is an honest, no-nonsense, effective prosecutor.

Under the present circumstances, however, and not without regret, I have concluded that he cannot continue to serve as Special Counsel.

News Scan

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Ex-Con Charged of Murdering a Florida Girl:  An Alabama man who spent 15 years in prison for a 1999 sexual assault and rape has been charged with the kidnap and murder of a 12-year-old Florida girl.  The Associated Press reports that Robert Leroy Howard is facing charges which could result in a death penalty.  The victim, Naomi Jones, lived in the same Florida apartment complex as Howard's girlfriend where he stayed frequently.  The girl was reported missing on May 31.  Her body was found in a nearby creek by fisherman five days later.  An autopsy reported that she died by asphyxiation.  At a hearing on Friday, Howard was denied bail.  CBS news reports that investigators believe that the suspect and victim may have made contact via social media. 

Chicago: 43 Shot, 6 Killed Over Weekend:  Among the 275 people killed in Chicago so far this year were six who died last weekend.  Peter Nickeas of the Chicago Tribune reports that included in the 43 shooting victims were nine who were wounded in a single attack in Lawndale at about 3:15 am Sunday.  A 6:40 pm shooting at the crowded 31st Street beach critically wounded two 16-year-old boys.  In addition to the shootings, a 13-year-old girl was stabbed and beaten to death in Sheridan Park Sunday evening.  At least 1,520 people have been shot in 2017, down 150 from 2016.   
The U.S. Supreme Court today released orders from its conference last week, opinions in several argued cases, and one summary per curiam opinion.  There were no criminal law cases accepted for review or decided after argument.  However, the summary opinion was yet another reversal of a federal court of appeals for failure to respect the limits Congress placed on its authority to overturn state judgments for mere disagreement with a state court on an unsettled question.

Virginia v. LeBlanc, No. 16-1177, involves the rule of Graham v. Florida that a person under 18 at the time of the crime cannot be sentenced to life without parole for a crime less than murder.  The Fourth Circuit had disagreed with the Virginia state courts on the question of whether the state's "geriatric release" program provided a sufficient possibility of release to satisfy the Graham rule.

The Court today holds only that the Virginia trial court's ruling, resting on the Virginia Supreme Court's earlier ruling in Angel, was not objectively unreasonable in light of this Court's current case law.

The Hard Realities of Hard Time

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In the City Journal, Professor Barry Latzer reviews Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff.

[It] is probably the best book on so-called mass incarceration to date. A professor of law at Fordham, Pfaff doesn't cherry-pick data to support some a priori theory; staying empirically grounded, he grapples directly with the data--an approach that makes his argument for reducing imprisonment a very tough sell. If violent crime and other serious offenses are the primary reasons for incarceration, then why should we reduce imprisonment?

The author's main point is that the usual explanations for the rise in imprisonment--the "standard story," as he calls it--are not only wrong but also counterproductive to de-incarceration efforts. The standard story has three components: the war on drugs, long prison sentences, and the growth of private prisons. Each of the three, Pfaff demonstrates, is a secondary contributor at best.
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The Washington Post today carries the story of a local man (the former mayor of Fairfax City) who got a sentence of zero for distributing one the most dangerous drugs out there, methamphetamine.

This is not a young person, not a minority, not poor, not uneducated  --  and it's not pot and not simple possession. This is a grown man with a lot of advantages who is basically getting a walk (he did get time served, a little less than three months, plus "community service" (an especially sick joke since he was already a public servant at the time of his arrest)).

He was also, according to the story, unapologetic, and instead portrayed himself as the "victim" of addiction.  I was unable to find, however, any evidence of this in the news account beyond his self-serving claims  --  not that it would excuse either him or the clueless judge even if it were true.

Our country is suffering from crisis-level overdose deaths from hard drugs, of which meth is one of the worst.  As much as the Stanford rape abomination, http://www.crimeandconsequences.com/crimblog/2016/06/the-defense-bars-war-on-women.html,  this case proves that judges need the discipline and limits of mandatory minimum sentencing.
The Oroville Mercury Register has this editorial.

Reducing the massive prison budget was an unspoken incentive that helped some citizens buy into the state's alleged reforms: More criminals would be let out of jail, but at least costs would go down.

Wrong. Despite a smaller prison population, the state hasn't cut payroll.

The result is that the cost to house an inmate has skyrocketed to a record $75,560 in the next year, according to the state Legislative Analyst's Office. That price per inmate has more than doubled since 2005 and is the highest in the nation.
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So, to review: California residents got fewer prisoners, higher costs and more crime out of all this "reform." What a deal.
...we are swimming in dangerous waters.  

I have been unable to think of any reason beyond political assistance to the Attorney General's preferred candidate that Loretta Lynch told the head of the FBI not to call the Bureau's email investigation what is was  --  an investigation.

This was partisan behavior by the sitting head of the Justice Department intended to influence the outcome of the presidential election.  Oddly, I haven't heard any of those currently outraged say beans about it.

I might add that it's not clear whether Ms. Lynch gave this instruction before or after her closeted, tarmac meeting with her candidate's wealthy and well-connected spouse.  I haven't heard too much about that, either.  I wonder how long I should wait for a five-part series in the New York Times.

News Scan

No Trump Obstruction of Justice:  ..."under our Constitution, the president has the authority to direct the FBI to stop investigating any individual...Yet virtually every Democratic pundit, in their haste to `get' President Trump, has willfully ignored these realities.  In doing so they have endangered our civil liberties and constitutional rights,"  writes Harvard law professor Alan Dershowitz in this OpEd.   "I think that it is important to put to rest the notion that there was anything criminal about the president exercising his constitutional power to fire Comey and  to request -`hope'- that he let go the investigation of General Flynn," he added.  Included in his testimony yesterday is the news that the former head of the FBI leaked a private conversation with the president as reported by ABC News, and that Trump, according to Comey, encouraged investigations that might identify questionable contacts with the Russians by his staff, and the revelation that the New York Times falsely reported that the new president had colluded with the Russians, and you end up with this headline in this morning's Sacramento Bee: "Comey says Trump lied about why he was fired."

NSA Leak Suspect Denied Bail:  A federal magistrate judge yesterday denied bail to Reality Winner, a former NSA contractor employee accused of leaking classified information in violation of the Espionage Act, Katie Mettler reports in the WaPo.  The AUSA told the magistrate that Ms. Winner was both a flight risk and a danger to the public if released due to the valuable information she has.

Alabama Execution:  Alabama executed murderer Robert Melson last night for the 1994 killings of three employees of a Popeye's restaurant.  One Tuesday, the U.S. Supreme Court, 6-3, lifted a stay issued by a panel of the Eleventh Circuit.  Justice Thomas issued a temporary stay yesterday to allow the full court to consider a new petition.  The court denied the stay and vacated the temporary stay at 9:10 Alabama time, and the execution proceeded.  The challenge related to Alabama's use of midazolam, a problem caused by the anti-death-penalty movement's pressuring of pharmaceutical companies to cut off the supply of the better-suited barbiturate drugs.  Ivana Hrynkiw has this story with updates at AL.com.
The Brennan Center is an enthusiastically pro-criminal outfit affiliated with NYU. It produces a number of papers it calls "reports," but which are actually advocacy pieces for lowered sentencing.

It came out with one recently, titled "Crime in 2016: Final Year-End Data." Mostly, it presents a chipper picture.  But if you look hard enough...

Where Are They Now?

President Obama commuted more sentences than his 12 predecessors combined. The total was more than 1700.  The idea  --  one that we heard repeatedly  -- was that they would return to their communities to become productive, tax-paying citizens.

Someone didn't get the memo,

A convicted cocaine dealer released from prison early by former President Barack Obama is going to be an inmate again after getting arrested for theft and violating the terms of her release.

Carol Denise Richardson, 49, was arrested by the Pasadena (Texas) Police Department on April 13, less than a year after her life sentence for cocaine trafficking was cut short. She was placed on supervised release for ten years and the arrest and probation violations, such as quitting her job, will send her back to federal prison for 14 months.

In a Thursday hearing, assistant U.S. Attorney Ted Imperato said, "This defendant was literally given a second chance to become a productive member of society and has wasted it. She has shown a willful disregard for the law and must face the consequences for her crime."

Obama commuted a record amount of convicts, 1,715, and Richardson is at least the second of the bunch to have been arrested after their release. Robert M. Gill, another drug dealer, was arrested with two pounds of cocaine more than a year after his release, according to the New York Post.

With a sky-high recidivism rate for drug offenders (a rate Obama kept out of sight while on his clemency binge in favor of Happy Face statements he knew would never get pinned to him), what were we expecting?

President Trump has nominated U. Penn. Professor Stephanos Bibas to the U.S. Court of Appeals for the Third Circuit (Penn., N.J., Del.).

Among other works, Prof. Bibas is the co-author of a brief, interesting essay, "The Heart Has Its Value: The Justifiable Persistence of the American Death Penalty."  Also noteworthy is The Right to Remain Silent Only Helps the Guilty, 88 Iowa L. Rev. 421 (2003).

Orin Kerr has this post at VC.  Doug Berman has this post at SL&P.

Also nominated to courts of appeals are Colorado Supreme Court Justice Allison Eid to the Tenth Circuit and District Judge Ralph Erickson to the Eighth Circuit.

Zealous Defense Counsel

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We've often heard, including among the comments on this blog, that defense counsel is not merely entitled but obligated to be all in for the client.  It's the natural outcropping of our adversarial system, we are told.  Against the massive power of the state, the Champion of Liberty should be able to pull out all the stops.  If this entails pushing the envelope of truthfulness  --  as defense deceit is euphemistically called  -- well, this is the price we pay.  Get over it. 

One crime victim did not get over it, and instead went to the cops when the Champion of Liberty approached her in a particular way.  The Washington Post, whose crime reporting is as good as its editorial policy is bad, has the story.

No More Settlement Slush Funds

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The U.S. Department of Justice issued this press release yesterday.

Attorney General Sessions today issued the attached memo to all Department of Justice components and 94 United States Attorney's Offices prohibiting them from entering into any agreement on behalf of the United States in settlement of federal claims or charges that directs or provides for a settlement payment to non-governmental, third parties that were not directly harmed by the conduct.

"When the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the American people-- not to bankroll third-party special interest groups or the political friends of whoever is in power," said Attorney General Jeff Sessions.

Darn.  I was hoping that now that the Republicans are in, DoJ would prosecute some deep-pocketed wrongdoers and then settle with them on the condition that they shower CJLF with megabucks.  Can't you just picture our opponents turning purple with outrage?  Well, they would actually be right for once.  But it's not going to happen because AG Sessions is a better, more ethical man than former AG Holder.

Aruna Viswanatha has this article in the WSJ.

Prosecutors are generally elected locally in this country, and the races are typically not big-money campaigns.  Donors are typically local. In the past couple of years, though, criminal-friendly billionaire George Soros has been pumping big money into these little races, with appalling results.

In the Orlando, Florida area, he bankrolled the successful challenge of Aramis Ayala.  See this story by Elyssa Cherney in the Orlando Sentinel last August. After the election, not before, Ms. Ayala announced that she was effectively imposing her own personal moratorium on the death penalty in her jurisdiction, causing Governor Scott to remove her from a case.  See this post.

Now we have Philadelphia.  Scott Calvert reported last week in the WSJ:

Philadelphia defense lawyer Larry Krasner has made a career of standing up to law enforcement. Now he is now poised to be the city's top prosecutor.

Mr. Krasner, a self-proclaimed progressive who has filed 75 civil-rights lawsuits in his 30-year career and represented Black Lives Matter activists, won the Democratic primary for district attorney last month. His win--with 38% of the vote, nearly double his nearest rival--was fueled by strong support from African-American voters and a $1.5 million ad blitz from billionaire investor George Soros.
People who care about law enforcement are understandably alarmed.  "Eleven former city prosecutors signed an editorial ahead of the primary, warning that Mr. Krasner was a 'dangerous' candidate gaining 'a foothold thanks to money from a European billionaire.' "
My friend John Malcolm of the Heritage Foundation has this article at the Daily Signal criticizing the Back the Blue Act of 2017, which would make it a federal offense to kill, attempt to kill, or conspire to kill a federal judge, federal law enforcement officer, or "federally funded public safety officer."  The latter is a public safety officer of a state or local government agency that receives federal funds.  Putting aside the federalism question for the moment, John's criticism is that the bill does not contain an express mental state (mens rea) requirement for the "kill" prong.

Because the bill does not require that a defendant intend to kill or even know his "victim" was a "federally funded public safety officer," its severe penalties would apply if someone accidentally crashed into an officer with a bicycle, motorcycle, or car, or unknowingly served him contaminated food, and the officer died.

It would be better drafting to specify the required mental state in the text, but I do not agree with John that the omission transforms the offense into one of strict liability (with no mental state required) or even one where negligence will do.

This unhinged.  From the formerly respectable Above the Law:

My anti-Trump, #NeverTrump, #NotNormal bona fides are strong. I wanted Congressional Democrats to draw up impeachment charges before he even took office. I'm also NOT one of these "but Mike Pence would be worse" people. Pence is a problem, but one that exists within normal parameters of political problems. Trump is a cancer who needs to be irradiated from our body politic, and I truly don't give a damn how many "healthy" cells have to go down with him.

But if I could only take one scalp right now, the first one I'd take is Jeff Sessions. Not Trump, not Steve Bannon -- those muppets are here to put white males "back on top." The flaw in their plans is that white men are already on top, and they've been there for 400 years and counting in the New World. Trump and Bannon's false narrative that the white man is "losing" means that they don't really know what to do with all the power they've amassed. How do you win a game you've already won?

Jeff Sessions is not just here for the glory of white males, he's here for the oppression of others.

This has zip to do with manufactured ethics questions.  It's purely the product of race-huckstering hate  --  the Black Panthers with a pound of snark. 

Proposition 66 Oral Argument

Yesterday the California Supreme Court heard oral argument in Briggs v. Brown, the case challenging Proposition 66, "the Death Penalty Reform and Savings Act of 2016."  The petitioner, Ron Briggs, who is challenging the initiative, was represented by Christina Von der Ahe Rayburn.  The named respondents are Governor Brown, Attorney General Xavier Becerra, and the Judicial Council, represented by DAG Jose Zelidon-Zepeda.  The Proposition 66 campaign committee, Californians to Mend, Not End, the Death Penalty, successfully moved to intervene in the case, and I represented the committee at the argument.  The hour was divided 30-20-10.

The argument was streamed live.  For those who didn't catch it, a link to the archived video should be posted within a week is now available on this page.

The petitioner's challenge is a scattershot attack, challenging many provisions of the initiative in an effort to bring the whole enactment down.  Press accounts of the argument focused on the issue that was discussed at length, the requirement that the direct appeal and initial habeas corpus petition be completed within 5 years.  In my view, the more important indication from the argument is which issues did not produce any questions for our side from the justices.

It is always dicey to predict from oral argument, but from what does not seem to be seriously at issue, it appears unlikely that the court will invalidate the initiative as a whole or any a substantial portion of it.

Questions Asked Now, But Ignored Then

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Four senators closely identified with the "sentencing reform" movement have written the Attorney General, questioning his recent decision ordinarily to require federal prosecutors to charge defendants with the most serious readily provable offense.The letter is reproduced here, in the press release of one of its signatories, Sen. Mike Lee (R-UT).

I might have a more detailed response to this letter in a bit, but for right now, I have some questions of my own.

1.  Why should prosecutors, whose main duty is to enforce the laws as Congress wrote them, charge the defendant with anything other than what he actually did? Isn't honesty the paramount value we seek in public servants?

2.  Why do pro-"reform" senators want the executive branch to, in effect, legislate the "reform" agenda for them through massaged charging policies?  (Hint:  Because they can't get it through a wised-up Congress, so they want a work-around.  Whether the Constitution provides for executive branch "work-arounds" of Congress is not among the questions in which they seem interested).

3.  Why is it proper for prosecutors intentionally to withhold highly relevant information from the indictment (such as the amount of drugs the defendant is peddling)?  Don't we value prosecutors who are fully candid with the court from the getgo?

4.  Why is it wrong to have to explain in writing the reasons for seeking exceptions in favor of leniency?  Isn't more reflection, accountability and transparency what we want from prosecutors?

5.  Why wasn't this letter written to Attorney General Holder, who used an identical charging policy for three-quarters of his tenure heading the Justice Department?
The reason the federal judicial branch is not politically accountable is that it is placed by the Constitution outside politics.  Every one of the federal district court judges I've encountered over 40 years in practice understands this.  No matter what their political beliefs, they have conducted themselves with the circumspection and restraint their power assumes, and requires.

As is clear by now, I have never encountered US District Judge Mark Bennett of Iowa, formerly  --  and, so it would seem, presently  --  a powerhouse in the ACLU.

Judge Bennett recently gave a long speech to (at least) a CNN audience on how Congress is a bunch of callous ciphers.  He intended to make the case against Congressionally-enacted mandatory minimum sentences.  Instead, by both the substance of his remarks and his indiscipline in making them, he showed why they're needed.
The Wall Street Journal is carrying a story that Attorney General Sessions offered to resign .  It begins:

Attorney General Jeff Sessions offered to resign from his post in recent weeks, amid tension with President Donald Trump over his decision to recuse himself from the investigation into Russian meddling in the 2016 election, according to people familiar with the matter....

Mr. Trump's displeasure with Mr. Sessions appears to trace back to the attorney general's decision in March to remove himself from involvement in any Justice Department investigation related to the 2016 presidential race, following the disclosure that he had conversations with a Russian official while advising the Trump campaign. That contact appeared at odds with testimony he gave during his confirmation hearing.

Three observations.  First, I have no idea whether this story is true.  Second, Sessions' Senate testimony was truthful in every respect, and is sometimes made to appear dishonest only by omitting the the specific questions he was answering (as I explained here).

Third, remember when Sessions' opponents were claiming he could not be sufficiently independent from the President?  That he would be a shill, a puppet?  

Yes, well, someone was playing games with the truth, but it wasn't Jeff Sessions.

Why Sentencing Reform Tanked

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The estimable Doug Berman at Sentencing Law and Policy has this entry about what is to him, and others who sought the mass sentencing reductions they call "sentencing reform," bad news.

The news is that their proposals are still on the ocean floor.

The reason for this fact is, however, different from the one put forward in the article Doug cites.

News Scan

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Woman Charged With Leaking NSA Documents:  A 25-year-old woman has been charged with leaking national security secrets to the press.  Derek Hawkins of the Washington Post reports that Reality Leigh Winner was arrested last Saturday for transmitting secret national security information to a news organization.  The leaked information was related to attempted Russian hacking of a voting software supplier.  Winner, an employee at Pluribus International, a government contractor, had access to top secret information.  According to the FBI, in late May she printed out the top secret document and mailed it to a reporter at the leftist news outlet, The Intercept.

CA Supreme Court Upholds Death Sentence:  The California Supreme Court ruled Monday to uphold the death sentence given to Gerald Parker for the brutal murders of five women and one unborn child.  The Orange County Register reports that Parker, a habitual felon known as the "Bedroom Basher," was convicted of the home invasion rapes and murders of the Orange County women between 1978 and 1979 but was not tied to the crimes until DNA testing identified him in 1996.  A pregnant woman who survived being raped by Parker lost the child because of the assault.  The high court's 5-3 decision rejected claims by Parker that he was too intoxicated to be held responsible, that police violated his Miranda rights, that blacks were excluded from the jury, and that the victim impact statements were too emotional.

Oral Argument on CA Death Penalty Reform:  Maura Dolan of the Los Angeles Times reports on the California Supreme Court's oral argument today in Briggs v. Brown, the facial challenge to Proposition 66, the death penalty reform initiative adopted by the voters last November.  The reporter felt that the court was divided on whether or not a majority of justices would vote to uphold the measure.  One point of contention during the argument was the initiative's five-year time limit for the state appeal of a conviction and death sentence.  Counsel for the opposition argued that the time limit was only included in the measure to curry public support and was actually unachievable.  Arguing for the proponents, CJLF Legal Director Kent Scheidegger noted that the time limit was not the centerpiece of the initiative's broad reform of the state's death penalty process, but rather a goal which the courts should try to achieve through implementation of the several changes the initiative requires. 

News Scan

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CA Prison Tab, $75,000 Per Inmate:  In 2011, Governor Jerry Brown signed the "Public Safety Realignment" bill (AB109) into law.  At the time he promised that by reducing the state's prison population, Realignment would save millions of tax dollars, which could be used for rehabilitation and education.  At that time, the state's cost per prison inmate was roughly $49,000.  In 2014, proponents of California Proposition 47, the George Soros/ACLU funded "Safe Neighborhoods and Schools Act," told the public that converting property and drug crimes to misdemeanors would save millions more.  Last fall, Soros and Jerry Brown pooled another $10 million to buy TV ads, telling voters that the Governor's Proposition 57, "The Public Safety and Rehabilitation Act of 2016," would save even more millions by washing another 9,000 to16,000 prison inmates out on parole years earlier if their most recent felony was nonviolent.  Today, Associated Press writer Don Thompson reports that next year, with 30,000 fewer prison inmates, the state's cost per inmate will be $75,000...more than enough to send every inmate to Harvard.  Were all of these proponents lying or were they just stupid?  Yes.

Oral Argument on CA Death Penalty Reform Tomorrow:   The California Supreme Court will hold oral argument on the legal challenge to enforcement of last November's Proposition 66, a ballot initiative adopted to speed up enforcement of the death penalty in the Golden State.  Bob Egelko of the SF Chronicle reports that the plaintiffs in Briggs v. Brown are claiming that the measure, which sets deadlines for post-conviction review of capital cases, would "force the courts to prioritize a certain type of case at the expense of all other types of cases."  Not so, said CJLF Legal Director Kent Scheidegger, who told the reporter that the measure would actually relieve the Supreme Court of part of its capital workload by having initial hearings in the trial courts where frivolous claims could be flushed out.  Scheidegger will be participating in the oral argument tomorrow, which will be live-streamed at 9:30 am at this link.

In Honeycutt v. United States (16-142), the U.S. Supreme Court unanimously reversed the Court of Appeals for the Sixth Circuit holding that a co-conspirator cannot be ordered to forfeit conspiracy proceeds did not personally obtain under a theory of joint and severable liability.

In this case, the Honeycutt brothers operated a hardware store - Tony owned the store with their father, and Terry was a "salaried employee" who managed sales and inventory.  The brothers were warned by law enforcement that a product they carried called "Polar Pure", a iodine based water purification product, contained an ingredient that could be used to manufacture methamphetamine.  Despite the warning, the brothers continued to sell large quantities of the product, and over a 3-year period the store grossed more than $400,000 from the sale of more than 20,000 bottles of Polar Pure.  The brothers were subsequently indicted for various federal crimes relating to the sale of iodine with the knowledge it would be used to manufacture methamphetamine.

Cellular-site data tracking

This morning, the U.S. Supreme Court agreed to hear the case of Carpenter v. United States (16-402).  The issue is whether the warrantless search and seizure of cell phone records that detail the location and movement of the cell phone user over a period of time is permitted by the Fourth Amendment.

In this case, the defendants were charged with nine armed robberies in violation of the Hobbs Act (18 U.S.C. §1951).  At trial, the Government introduced the defendants' cell phone records to show that each defendant used his cell phone within 1 1/2 to 2 miles of several locations during the times the robberies occurred.  The Government obtained these records pursuant to the Stored Communications Act (18 U.S.C. §2703(d)), which permits the Government to require disclosure of certain telecommunication records when "specific and articulable facts show that there are reasonable grounds to believe that the content of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."

Is the Klan Running Baltimore?

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Baltimore is a model liberal city, progressive all the way.  Not a Republican in sight. When a small-time drug dealer, Freddie Gray, died under suspicious circumstances in police custody, the six officers involved were forthwith charged with numerous crimes, up to and including murder (none was convicted of anything, however).

The prosecutor, black radical Marilyn Mosby, held a campaign-style rally when charges were brought to announce that "our time is now," never quite defining who "our" referred to.  She has been quieter since fumbling away the entire case.

The mayor, at the time Stephanie Rawlings-Blake, famously declared that the Freddie Gray rioters and arsonists needed "space to destroy."  Her desires saw more success than Ms. Mosby's, as the rioters took her up and torched a nice chunk of the city.

Then just in January there was the last gasp of Loretta Lynch's DOJ, engineering a stifling police consent decree with a half-clueless and half-complicit city.

So now what do we have?

News Scan

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Sound Cannons May Be Excessive Force:  A federal judge has ruled that the NYPD use of sound cannons for crowd control during the 2014 protest following the death of Eric Gardner may constitute excessive force.  Fox News & the Associated Press report that Judge Robert Sweet held that the six protesters filing the suit had a cognizable claim that their constitutional rights were violated.  The six are seeking damages for headaches and hearing damage they claim was caused by the use of the "Long Range Acoustic Device" to control the crowd during the protest.  The judge noted that even when glass bottles were thrown from the crowd toward the police, he felt that use of the device was unwarranted.  

Southern Manhunt for Escaped Inmates:  Police in Mississippi and Alabama are searching for two inmates still at large after escaping from a Mississippi jail Thursday.  Willie James Inman of Fox News reports that three men escaped from the jail Thursday morning, and one was captured across the border in Alabama that afternoon.  Mark Lindsey was awaiting trial on burglary charges and had been to prison several times.  David Glasco was facing charges of sexual battery, and John Brown was awaiting trial for possession of stolen property.  County Sheriff Randy Tolar said the public should consider the two remaining escapees, Glasco and Brown, dangerous.

Travel Ban Case Goes to SCOTUS

Jess Bravin and Brent Kendall report for the WSJ:

The Trump administration late Thursday asked the Supreme Court to revive its plan to temporarily ban travelers from six largely Muslim countries from entering the U.S., a major legal test for one of the president's most controversial initiatives.

"The Constitution and acts of Congress confer on the president broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation's interest," the Justice Department said in a petition. The administration said the plan--which would put a 90-day halt on the entry of individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen--is needed as a means to "prevent infiltration by foreign terrorists."
*            *            *
A federal district judge in Hawaii also blocked the ban, and last month the Ninth Circuit, sitting in Seattle, heard the administration's appeal. In Thursday night's filings, the Justice Department asked the Supreme Court to stay the Hawaii court order as well while its appeal proceeds.

Since the order by its terms expires in 90 days, this is one of those cases where the "preliminary" proceedings are, in fact, the whole ball game.  By the time the case reaches final judgment in the normal course, it will be moot.

The certiorari petition in the Fourth Circuit case is Trump v. International Refugee Assistance Project, No. 16-1436.  The stay application in the same case is 16A1190.  The application, certiorari petition, and appendix are available as a single PDF file here. The stay application in the Hawaii case is 16A1191.

The Sometime Virtues of Globalism

As of last week, the United States was in bed with the following countries on a hotly debated issue of international importance and grave moral consequence:  China, Iran, Iraq, Saudi Arabia, North Korea, Afghanistan, Somalia, Cuba, Libya, Uganda, Bangladesh, and Namibia.

Question:  Can you name the issue?

News Scan

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Drugged Driving Increasing:  In the wake of several states legalizing recreational pot and the widespread reduction of penalties for use and possession of other drugs, studies are finding sharp increases in drugged driving.  Quentin Fottrell of Market Watch reports that Auto accidents involving drugged drivers have increased by 22% over the last decade, along with increases of fatal drug overdoses.  The biggest spike in overdoses were among generation X and baby boomers.  The level of intoxication, testing and consequences for drivers high on drugs vary from state to state.  The recent DUI arrest of Tiger Woods highlights the problem law enforcement faces in trying to keep intoxicated drivers off the roads.

Good News from Legal Academia

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I am pleased to pass along this morning's announcement from the President of Harvard University naming Prof. John Manning as the new Dean at Harvard Law, effective July 1.  As you will see, it would hard to find anyone with more outstanding credentials to lead one of the Big Three law schools.  I thought these two paragraphs in the announcement were particularly noteworthy:

Early in his career, in addition to his service in the Justice Department, Manning was an associate in the Washington office of the law firm Gibson, Dunn & Crutcher. He served as a law clerk to both Associate Justice Antonin Scalia of the U.S. Supreme Court and Judge Robert H. Bork of the U.S. Court of Appeals for the D.C. Circuit.

John's service at DOJ consisted of a stint during the Reagan years in the Office of Legal Counsel, then under George H.W. Bush in the Solicitor General's Office.

John is listed as an expert on the registry of the Vast Right Wing Conspiracy Federalist Society.

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