October 2017 Archives

United States District Judge Richard Seeborg does not give a damn what the United States Supreme Court says, he is going to ensure no one is executed in California regardless of controlling precedent.

In Glossip v. Gross (2015), the Supreme Court set out the requirements for a death row inmate to obtain a preliminary injunction in a method-of-execution civil suit.  One of the elements is that he must "establish a likelihood of success on the merits."  (Slip opinion p. 11.)  To establish that in a method-of-execution suit, the high court ruled (p. 13):

"requires petitioners to establish a likelihood that they can establish both that [the state's] lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives."

Years ago, before Glossip, a California murderer named Michael Morales blocked his execution by arguing that the three-drug protocol then in effect would likely violate the Eighth Amendment.  Since then, the other murderers whose judgments have been upheld all the way through the review process have piled in.  They have also been granted stays on nothing more than a showing that they are similarly situated to Morales.

But the intervention/stay orders issued last April 18 and today are post-Glossip orders.  Don't they require the showing that the Supreme Court says is required?  Of course.  And what does Judge Seeborg say about the Glossip requirement?
We hear incessant calls for more "programs" for prisoners.  I am skeptical of many programs, but one that I agree we need more of is simple employment.  Former prisoner Chandra Bozelko has this op-ed in the LA Times explaining the value of prison labor and why critics who oppose it are hurting the people they claim to be helping.

When a prison inmate prays for release from her cell, prison industries can be her first salvation. I couldn't wait to head to work in the kitchen of the maximum-security women's prison in Connecticut where I did six years for identity theft and related crimes. I was paid 75 cents to $1.75 a day to make and serve a lot of casserole. Yet I consider most of the criticism lobbed at prison labor -- that it's a form of slavery, a capitalist horror show -- unfair, and even counterproductive in the effort to reform the justice system.

Among the firefighters on California's fire lines this fall, 30% to 40% are inmates, paid $1 an hour to work side by side with crews making a lot more money. Some inmate firefighters have gone on the record saying they feel the same way I do about prison jobs. It's people on the outside who rail against prison work assignments, particularly hiring prisoners to fight fires.
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Any change for good that happened within me while I was incarcerated grew out of my job.
Sorry  --  April fools!  As this piece from the NYT, of all outlets, shows, the notion that police were brutalizing citizens simply because they wouldn't be seen doing it has now been shown to be false.

Indeed, the article goes so far as to suggest that the expense of bodycams isn't worth the candle, because the supposed police attitude of "I-can-do-it-because-you-won't-see-it" was a myth from the getgo.

Imagine that!  Still, I tend to favor bodycams, because legal outcomes should be based on truth, and bodycams  --  even when they don't catch much misbehavior by the police  --  are sure to capture a boatload by arrestees.

LAPD Investigating Harvey Weinstein

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Richard Winton and Victoria Kim report for the LA Times:

An Italian model-actress met with Los Angeles police detectives for more than two hours Thursday morning, providing a detailed account of new allegations that movie mogul Harvey Weinstein sexually assaulted her at a hotel in 2013.

She is the sixth woman to accuse Weinstein of rape or forcible sex acts. Los Angeles police Capt. Billy Hayes confirmed that the department has launched an investigation into the matter.

It is the first case related to Weinstein to be reported in Southern California. New York police already have two active sex crime probes and London's Metropolitan Police is investigating allegations made by three women.

Justice, Finally, for a Fallen Officer

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Montgomery Police Corporal Anderson Gordon III was murdered in the line of duty 20 years ago last month. His Officer Down Memorial Page is here.

As noted yesterday, the U.S. Supreme Court vacated a stay that had been entered by a district court in blatant disregard of the legal requirements for a stay.  Justice Thomas later entered a brief stay himself to allow the full court to consider a subsequent petition.  Justice Thomas seems to use his temporary stay authority as Circuit Justice more often than the others.  Upon consideration, the full court denied relief and vacated that stay, and the execution proceeded.

WSFA in Montgomery has this story on the execution.

News Scan

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Inmates Charged in Prison Killings:  Four inmates serving time in the Pasquotank prison in North Carolina have been charged with the October 12 murders of two prison employees and injuries to ten others during a failed escape.  Ames Alexander and Gavin Off of the Charlotte Observer report that three of the charged inmates were serving sentences for murder or attempted murder while the fourth was a burglar due to be released next year.  As part of the escape plan, the inmates set a fire in the prison sewing plant, then attacked the employees with scissors and hammers.  Prison authorities believe that the inmates had planned to climb over a perimeter fence, but were interrupted by the rapid response of guards and local police.  Two of the injured employees are in critical condition.  

Stays and Possibility of Success

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The U.S. Supreme Court has vacated another stay of execution from Alabama, reminding the lower federal courts that "a significant possibility of success on the merits" is a requirement for a stay.  See prior post of October 4.  No, again, you can't use the All Writs Act to weasel out of that requirement.  Here is the order in Dunn, Commissioner v. McNabb, 17A440:

The application to vacate the injunction entered by the United States District Court for the Middle District of Alabama on October 16, 2017, presented to Justice Thomas and by him referred to the Court, is granted. "[I]nmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Hill v. McDonough, 547 U. S. 573, 584 (2006). The All Writs Act does not excuse a court from making these findings. Because the District Court enjoined Respondent's execution without finding that he has a significant possibility of success on the merits, it abused its discretion. We accordingly vacate the injunction.

Justice Breyer and Justice Sotomayor would deny the application to vacate the injunction.

Another Reason Not to "Dine and Dash"

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Kim Chatelain reports for the New Orleans Times-Picayune:

An effort to avoid paying a $7.41 bill at a Waffle House in tiny Pearl River has led to the arrest of two out-of-state men and the discovery of a sophisticated interstate identity theft scheme that is now being investigated by the U.S. Secret Service.
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Upon investigation, police discovered and seized from the two suspects several fake identification cards, counterfeit credit cards and credit card skimming devices. Also found was a Waffle House ticket for $7.41, police said.

The investigation further revealed that Stephens and Brown were recruited and hired by an unidentified person and had been flown into Louis Armstrong International Airport from different states. The two suspects rented the U-Haul in New Orleans East and are alleged to have installed credit card skimming devices in gas pumps at stations in the area, police said.
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Pearl River Police Chief "JJ" Jennings credited his officers for their investigative work that cracked the case.

"As long as I am here, we are not going to put up with any of this criminal nonsense, especially from criminals flying in from California and Indiana," Jennings said. "Let this be a lesson in etiquette as well; pay your bill and tip your waitress."

Cons for Congress?

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In a column in the WSJ, Karl Rove looks at "Steve Bannon's Motley Crew of Challengers."

The first House candidate Mr. Bannon has blessed is former Rep. Michael Grimm, who was forced to resign his New York seat in 2015 after pleading guilty to tax fraud. Recently released after seven months in the federal pen, Mr. Grimm will challenge his successor, Rep. Dan Donovan. Presumably Mr. Grimm won't campaign in his orange prison jumpsuit.
I've seen this movie before.  Nominate a bunch of unelectables and hand the seats and the majority to the Democrats on a silver platter.  I'd rather not see it again.

News Scan

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Habitual Felon Arrested in Triple Murder:  A Delaware man with 15 felony convictions was arrested yesterday for shooting five people at a small business in Maryland and the owner of a car dealership in Delaware, leaving three people dead.  Justin Fenton and Talia Richman of the Baltimore Sun report that state and federal officers tracked Radee Prince from Maryland to Wilmington, Del., after a man fitting his description shot the car dealer in the head.  That victim is expected to survive.  Prince had worked at the Maryland kitchen countertop company and is believed to have targeted the employees he shot.  Police believe that he also knew the car dealer as well.  Prince, who has been arrested 42 times, pled guilty to 15 counts of burglary in 2003 and had been charged with several handgun violations in 2015.
Orin Kerr has this post at the Volokh Conspiracy discussing "a new case, from the Massachusetts Supreme Judicial Court, on the intersection between the pearly gates and the cloud."

Jason Riley on Thurgood Marshall

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Jason Riley has this column in the WSJ regarding Thurgood Marshall, a new film about him, and Marshall's opinion of "activists."

Warrants for Data Stored Abroad

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Jennifer Daskal has this op-ed in the NYT:

In 2013, United States agents served a warrant on Microsoft seeking the emails of a suspect in a drug case. Microsoft balked at the request, saying that the data was stored on a server in Ireland and out of the reach of United States law enforcement. To access the data, the United States would need to make a request to the Irish government through diplomatic channels -- a slow and burdensome process. The government fought back, arguing that the Washington State-based company could access the emails from the United States, without ever stepping foot in Ireland, and was required to comply.

Monday, the Supreme Court agreed to hear the case this term. Its decision -- which will come after two lower courts sided with the government and the Second Circuit reversed -- will determine the extent to which United States law enforcement can access data held abroad. Microsoft will argue that the data is outside domestic law enforcement's direct reach. The government will make the case that its warrant authority covers data held anywhere, so long as it can be accessed by a company operating from within the United States.

Both of these positions have troubling implications. What is needed is a solution that falls between these two extremes. Because the courts can't provide this, Congress needs to step in.
In principle, I agree that Congress should decide this issue.  As a matter of practical politics, though, good luck with that.  There are lots of issues in criminal justice that the legislative authority should decide but doesn't.  Their focus is elsewhere and the issues are sometimes tough, so the honorable representatives are just as happy to punt the ball the courts.

Might this issue be different?  Maybe, because it involves large and influential companies.  We will see.

News Scan

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TX to Execute "Tourniquet Killer":  A Texas pedophile convicted of raping and murdering a 21-year-old woman in 1992 is scheduled to be executed tonight.  Tracy Connor of NBC News reports that a DNA sample taken from Anthony Shore following his 1998 conviction for sexual assault tied him to the 1992 strangulation murder of Maria del Carmen.  ABC News details Shore's murder spree between 1986 and 1995, which resulted in the sexual assault and strangulation deaths of del Carmen and four other Hispanic women, including a 9-year-old girl.  Following his arrest for killing del Carmen, Shore admitted to the other killings and told his defense attorneys he wanted to be executed for the crimes.  Because his victims were strangled to death with home made tourniquets, he was dubbed the "tourniquet killer."  On appeal Shore's attorneys claimed that he suffered from brain damage and should be found ineligible for execution.  No word on whether death penalty opponents will hold a candlelight vigil protesting the execution.  

Update:  The Houston Chronicle reports that a District Judge has granted a 90-day stay to Shore's execution at the request of Montgomery County prosecutors.  This was in response to Shore's expressed willingness to discuss other undisclosed murder victims and admit that he was asked by a fellow inmate to confess to a 1998 murder.  

News Scan

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CA Governor's Get Out of Jail Free Approach:  Citing several measures supported by Governor Jerry Brown which have reduced consequences for criminals in California, Michelle Hanisee, head of the Los Angeles Association of Deputy District Attorneys, has targeted the Governor as an advocate for criminals.  In a post this morning for the ADDA Hanisee notes that the Governor's behavior makes it clear that "he wants convicted criminals to serve as little time as possible."  After pooling $10 million  with George Soros to fool state voters into passing Prop. 57, which shortens sentences and gives the Parole Board authority to ignore enhancements, Brown signed AB 620, which allows criminals who use guns in crimes to avoid an increased sentence, and vetoed AB 1408, a modest bill passed unanimously by the Legislature to restore some consequences for repeat offenders.    

Soros Gives $18 Billion to His Foundation:  One of the biggest advocates for "sentencing reform" (read: reduced sentences) is New York hedge-fund billionaire George Soros.  Through his Open Society Foundation and a network of smaller non-profits spread across the country, Soros has channeled millions of dollars to campaigns removing tough on crime District Attorneys and Sheriffs and groups advocating for open borders and reduced sentences.  Juliet Chung and Anupreeta Das of the Wall Street Journal report that the Foundation's budget for 2017 set aside just under $90 million for "Justice Reform," but also put another $268 million into spending categories like Human Rights, Equality and Democratic Practice, which would allow for funding of campaigns for District Attorneys, Sheriffs and Attorneys General, and support for Black Lives Matter the ACLU and other anti-law enforcement causes.   It should be noted that weeks after millions in Soros dollars helped pass California's Proposition 47, which converted several common felonies into misdemeanors, the Open Society Foundation made a $50 million contribution to the ACLU to bolster its advocacy for sentencing reform nationally.    
Michele Hanisee has this post for the L.A. Association of Deputy District Attorneys with the above title.

As Governor Brown enters his final years in office, legislation he has proposed, signed and vetoed in the past year make it crystal clear he wants convicted criminals to serve as little time as possible. Three changes in the criminal justice system illustrate his beliefs.
The post discusses Proposition 57, which we have discussed on this blog, SB 620, watering down the punishment for criminals who use a gun, and the Governor's veto of AB 1408, a bill that would have somewhat mitigated the harm caused by the ill-advised Realignment bill of several years ago, AB 109.

Governor Brown has in the past claimed that he seeks to make the criminal justice "more human, more just, and more cost-effective."  It appears the Governor is eagerly pursuing the "cost-effective" portion of his statement by reducing punishment for crime in every way possible. But it will be victims who pay the price.

News Scan

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Illegal Arrested in Student's Murder:  A man protected from deportation under President Obama's DACA program has been arrested for the murder of a South Carolina high school student.  Samuel Chamberlain of Fox News reports that 19-year-old Daniel De Jesus Rangel-Sherrer confessed to police that he led Diana Martinez-Gonzalez into a wooded area on October 4th and shot her.  A friend of the victim told detectives that she was also held against her will by Rangel-Sherrer but managed to escape.  ICE has placed a detainer order on the suspect, and confirmed that he had been a DACA recipient.  Since 2012, the DACA program has protected an estimated 800,000 illegals from deportation. 

News Scan

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High Court Declines TX Murderer's Appeal:  A man convicted of arranging the murder of his mother and brother in order to collect a $1 million inheritance lost his bid for Supreme Court review of his death sentence Tuesday.  Michael Graczyk of the Associated Press reports that Thomas Whitaker plotted with two friends to kill his parents and brother and even shot himself in the arm to make it appear that he was also a victim.  Unfortunately Witaker's father survived and his two accomplices plead guilty.  In his appeal he argued that prosecutors broke their promise to let him plead guilty to avoid a death sentence.  Last April the 5th Circuit held that while Whitaker's attorneys initiated the plea deal, prosecutors only promised to "consider" it.  A jury decided Whitaker deserved a death sentence.

Lifer Who Stabbed Prison Guard Executed:  A inmate serving a 99-year sentence for murder when he stabbed a Texas corrections officer to death eighteen years ago, was put to death Thursday.  Samantha Schmidt of the Washington Post reports that Robert Pruett was convicted of stabbing 37-year-old corrections officer Daniel Nagle eight times with a steel rod as payback over a dispute about a peanut butter sandwich.  Pruett won a stay of his execution in 2015 to allow additional DNA testing of the murder weapon.  After the results of the test proved inconclusive, Pruett filed a civil suit claiming that the Texas Court of Criminal Appeals denied him due process.  After 5th Circuit rejected that suit, he filed a last minute petition arguing that the appellate court had used the wrong standard in rejecting his claims.  SCOTUS denied that appeal.  The Nathan Robinson of the New York Times has this story arguing Pruett's case. 

Collateral Consequences

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Some companies are largely driven by one person or a small number of people.  What happens to a company when one of those people turns out to be a serial sexual harasser and possibly a rapist?  Ben Fritz reports for the WSJ:

Weinstein Co. is exploring a sale or shutdown and is unlikely to continue as an independent entity, a person close to the company said.

The film and television studio's board of directors has been talking to possible buyers as it mulls how to move forward after firing co-chairman Harvey Weinstein on Sunday amid dozens of accusations against him of sexual assault and harassment.
I hope they find a buyer.  It would unfortunate if regular working folks found themselves unemployed due to a company collapse.

Cal. Cops Speak Out on Gun Legislation

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The Police Officers Research Association of California has this press release on Gov. Brown's signing of SB 620, noted in yesterday's News Scan:

PORAC has opposed the bill from the beginning, and for two serious reasons:

• The current statutes relating to firearm enhancements already allow a judge to use discretion in sentencing. Each enhancement section has various levels of sentencing durations to be used by the judge on a case-by-case basis.
• PORAC continues to have concerns over the passage of Proposition 57 and the early release of prisoners who have not only committed serious crimes against the public, but have usually left a trail of victims behind. The firearm enhancement sections of the Penal Code oftentimes may be the only penalty keeping a convicted criminal from being eligible for early parole under Proposition 57. By allowing a judge to eliminate, or not impose, the firearm enhancement, the likelihood of dangerous criminals on the street increases.
This measure is unfair to victims and dangerous for our communities.
Wildfires have long been a huge problem in California.  They destroy forests, they destroy homes and businesses, and they kill people.  Some fires occur naturally.  Some are caused accidentally by people, who may or may not have been negligent.  And some are set on purpose.  Arson is therefore a major crime.

Pablo Lopez reports for the Fresno Bee:

A 70-year-old Squaw Valley man who told authorities he lit a string of wildland fires in east Fresno County for "no reason" was sentenced Wednesday to 18 years in prison.

Michael Wayne Hamilton Sr. was initially charged with 30 counts of arson for setting fires over a three year period that started in May 2012 and ended with his arrest in May 2015. But in a plea agreement in August this year, he pleaded no contest to 10 felony arson charges.

Eighteen years is a long sentence for a 70-year-old, right?  He is unlikely to see the outside of the prison wall again, right?


Read more here: http://www.fresnobee.com/news/local/crime/article178325671.html#storylink=cpy
Robert L. Woodson has this op-ed in the WSJ with the above subtitle.

This summer, law professors Amy Wax and Larry Alexander caused a stir with an op-ed lamenting the decline of what they called "bourgeois norms." "All cultures are not equal," they rightly observed. Those that encourage self-restraint, delayed gratification, marriage and a strong work ethic tend to thrive. Those that tolerate or excuse substance abuse, out-of-wedlock pregnancy and dropping out tend to break down.
I would add obeying the law and not violating the rights of others (which are often the same thing).  See my Sept. 20 post.

Ms. Wax and Mr. Alexander were instantly accused of racism by the growing army of angry academics who police the prevailing narrative of black victimhood.
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News Scan

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CA Reduces Sentences for Use of a Gun:  Governor Jerry Brown has signed a bill into law that allows judges to give a shorter sentence to criminals who use a gun during a crime.  The Deputy District Attorneys Association of Los Angeles reports that SB 620 would eliminate the mandatory sentence enhancement for criminal use of a firearm.  The poster boy Senator Steven Bradford used to promote his bill was Denzel Crisp who, for no reason, fired multiple shots into a crowd at a party, injuring one.  Senator Bradford and Governor Brown believe that because nobody was killed, an increased sentence for shooting into a crowd is too harsh. 

Default Mens Rea, Continued

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Professor Gideon Yaffe of Yale Law School has posted a thoughtful comment to my post of last Thursday on the Mens Rea Reform Act of 2017, S. 1902.  I thank him for his comment and continue the discussion here.

Prof. Yaffe's first disagreement is that the term "willful" as used in federal criminal law is broader than I believe it is, and therefore setting willfulness as the default mens rea (which the bill does) would not be as harmful as I think.  He says that term does not require intent but rather that knowledge of the nature, probable result, etc. along with knowledge of the illegality is sufficient, citing Cheek v. United States (1991).

I see a couple of problems with relying on the case law definition of "willful."  First, as the Court has noted many times, "The word 'willfully' is sometimes said to be 'a word of many meanings whose construction is often dependent on the context in which it appears.' "  Bryan v. United States (1998).  Second, and more importantly, the bill contains its own definition:

"(4) the term 'willfully', as related to an element of an offense, means--

"(A) that the person acted with knowledge that the person's conduct was unlawful; and

"(B) if the element involves the nature, attendant circumstances, object, or result of the conduct of a person, that--

"(i) the person had knowledge of the nature, attendant circumstances, object, or result of his or her conduct; and

"(ii) it was the conscious object of the person to engage in conduct--

"(I) of that nature;

"(II) with that attendant circumstance;

"(III) with that object; or

"(IV) to cause such a result.

For crimes with an element of a result, a conscious object to cause that result is precisely the Model Penal Code definition of "purposely," the most restrictive form of mens rea requirement.  See MPC § 2.02(2)(a)(i).  The MPC defines "knowingly" for such an offense as being "aware or practically certain that his conduct will cause such a result."  See § 2.02(b)(ii).  The bill clearly excludes MPC "knowingly" as sufficient for this class of offenses. 

To End the Death Penalty: Lie More

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Except for punishment for outright perjury or planning to kill government witnesses, there is no penalty known to me against the defense side's engaging in perverse or deceitful behavior in order to advance the ball.  Indeed, such behavior is not merely condoned but commended:  The client is presumed innocent; actual innocence (or guilt) is all but irrelevant; the state employs politically ambitious and morally tone-deaf prosecutors; the cops cheat; and criminal punishment is per se the outcropping of a backward, racist American culture that needs stiff blowback in order even to start to straighten out.  So if this particular client is guilty or even worse than guilty, hey, look, this is not my problem.  The state has all the resources, and we need to wake up  --  have a "national conversation" about justice, that is.

Ever heard that one before? 

I mention it here because of an entry Doug Berman has up today titled, "Could poor health help save the life of Ohio's 'poster child for the death penalty'?"  It's about an Ohio killer fighting off his scheduled execution because he is, so his lawyer claims, very ill.  You have to read all the way to the end to get the punchline:

Campbell argues that poor health is one reason he shouldn't be put to death, but he used an earlier, false health claim to commit the crime that put him on death row. Campbell feigned paralysis from a glancing bullet wound suffered during a robbery arrest. As Campbell was being taken to the Franklin County Courthouse for a hearing on April 2, 1997, he sprang from his wheelchair, overpowered a deputy sheriff, took her gun and fled. He then carjacked Dials, who was at the courthouse to pay a traffic ticket. After driving Dials around for hours, Campbell ordered him onto the floor of his truck and shot him twice.

Want to frustrate the death penalty?  Just keep lying.  I must ruefully admit, it works much of the time.

The End of the Blue Slip

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Majority Leader Mitch McConnell has taken a lot of heat from conservatives for moving too slowly and ineptly on the Trump agenda, and for being a stodgy, Establishment figure.

I always thought this criticism unfair and to an extent uninformed.  The Senate is simply not designed for speed.  The criticism has also overlooked McConnell's crucial role in the confirmation of Justice Gorsuch, a key to preserving a balanced and perhaps  --  at some point  --  a conservative-tilting Supreme Court.

As of four hours ago, Fred Barnes in the Weekly Standard reported that McConnell is ending the "blue slip."  The blue slip is a sometime-Senate tradition (not a rule) under which the home state senator for a judicial nominee can prevent even a hearing before the Judiciary Committee.  It is currently holding up such nominees as AUSA Ryan Bounds of Oregon and state supreme court Justice David Stras of Minnesota. I have not heard any serious argument that these candidates are anything less than fully qualified; the hold-ups are difficult to see as something other than partisan obstruction.

If the Barnes report is true, it's a huge step forward in re-casting the federal judiciary.  According to the official site for United States Courts, there are currently 149 vacancies.

Congratulations to Leader McConnell and Chairman Chuck Grassley (who surely approved this move) for ending an anachronism of Senatorial privilege in favor of majority rule.
The U.S. Supreme Court has issued the following order in Trump v. IRAP, No. 16-1436, the Fourth Circuit case challenging the 90-day ban on travel from six countries where the U.S. was unable to properly vet admittees (bold-face added):

We granted certiorari in this case to resolve a challenge to "the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780." Because that provision of the Order "expired by its own terms" on September 24, 2017, the appeal no longer presents a "live case or controversy." Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
The portion I have bold-faced means that the obnoxious Fourth Circuit opinion is wiped out as precedent.  CJLF's brief in the case, which urged precisely this result, is here.  At the time of the main briefing, we were the only ones calling for this, although in a supplemental letter brief in response to the Court's request the Solicitor General came around.

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.

The movement against "overcriminalization" covers too much territory to allow me to take a position on it.  To the extent it condemns non-mens rea offenses, or seeks to scale back using criminal law as the cudgel of the nanny state, I'm for it.  To the extent it's just cover for the movement to legalize heroin and other drugs, I'm against.

The following example, however, shows why the campaign against overcriminalization has merit, now more than ever.  When we threaten our fellow citizens with a year in the slammer simply for being boorish, things are out of hand.  

Here's the story:

California can now start jailing people that refuse to use the preferred gender pronouns of nursing home residents after Democratic Gov. Jerry Brown signed the bill Thursday.

The law's effect is limited to nursing homes and other long-term care facilities, but mandates that those who "willfully and repeatedly" refuse "to use a transgender resident's preferred name or pronouns" can be slapped with a $1,000 fine and up to one year in prison, according to the California Health and Safety Code.

Sgt. Manning, freshly living free courtesy of a gigantic commutation for treasonous behavior, must be wearing a big smile just now.

CORRECTION:  It was Pvt. Manning, not Sgt. Manning, at the time of discharge.

The Bogus Theory of Implicit Bias

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Implicit bias theory has become widespread in academia.  It's used in criminal law as a high-brow form of accusing one's opponent of racism  --  i.e.,  of calling whites bigots, and therefore incapable of giving a fair shake to minorities, without seeming too nasty about it.

This is condescension impersonating charity, but that's not the worst thing about it.  The worst thing is that implicit bias theory is baloney, as Heather MacDonald illustrates here. She starts off:

Few academic ideas have been as eagerly absorbed into public discourse lately as "implicit bias." Embraced by Barack Obama, Hillary Clinton and most of the press, implicit bias has spawned a multimillion-dollar consulting industry, along with a movement to remove the concept of individual agency from the law. Yet its scientific basis is crumbling. 

Implicit-bias theory burst onto the academic scene in 1998 with the rollout of an instrument called the implicit association test, the brainchild of social psychologists Anthony Greenwald and Mahzarin Banaji. A press release trumpeted the IAT as a breakthrough in prejudice studies: "The pervasiveness of prejudice, affecting 90 to 95 percent of people, was demonstrated today . . . by psychologists who developed a new tool that measures the unconscious roots of prejudice."

News Scan

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Ohio Murderer's Conviction Overturned:  The Ohio Supreme Court overturned the conviction and death sentence of a man found guilty of the 2010 rape and murder of a bartender.  Evan MacDonald of the Cleveland Plain Dealer reports that the court's 4-3 ruling held that the introduction of the defendant's knife collection at trial was "highly prejudicial" and likely influenced the jury's verdict.  Witnesses at the bar where Ann McSween worked saw defendant Joseph Thomas on the night of the murder with a blue knife clipped to his belt.  They saw her refuse to dance with Thomas and heard her ask him to leave at closing time.  Later in the parking lot, the woman was stripped, beaten, raped and stabbed to death.  Thomas' neighbor saw someone at Thomas' residence shortly after the murder, burning what police found to be the victim's clothes in a barrel.  Thomas' girlfriend said he always carried his blue knife on his belt when he went to bars.  Thomas denied this, and his blue knife was never found.  At trial the prosecutor showed the jury the five other knives Thomas kept and suggested it would not be unusual for him to carry a knife.  The court's dissent noted that showing the jury the knives corroborated testimony that Thomas was carrying a knife on the night of the murder. 

DNA Ties Sex Offender to 1980 Murder:  A construction worker, who dodged a sexual assault conviction in 1981 and was later convicted of one in 1982, has been arrested for the murder of a 20-year-old pregnant woman in 1980.  Emily Holland of the Patch reports that new DNA technology resulted in a match tying Robert Yniguez to the body of Teresa Broudreaux found in March 1980 lying on a beach near Palos Verdes in Los Angeles County.  Yniguez served eight years in prison for the 1982 sexual assault, but charges were dropped for an earlier assault when the victim stopped cooperating with police.  He is being held on $2 million bail.

Execution Protocols and Bureaucracy

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Don Thompson reports for AP that California's Office of Administrative Law has once again rejected the state's proposed new execution protocol.  Why do these bureaucrats have any say in the matter anyway?

"This is stupid," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation that sued to force the new rules. Since the regulations must be approved by state and federal judges anyway, he said, "this additional layer of bureaucracy is completely unnecessary."

That's why death penalty supporters ended the role of the Office of Administrative Law in Proposition 66, the ballot measure that voters approved in November, he said.

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The regulatory office similarly rejected an earlier proposal in December. It said in a brief decision Monday that some of those same issues remain unresolved.

However, the state Supreme Court in August upheld Proposition 66 ending the requirement that prison officials receive approval from state regulators. Death penalty opponents asked the judges to reconsider it with a Nov. 22 deadline, but Scheidegger expects the justices to uphold their earlier ruling.

News Scan

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Quad Killer's Death Sentence Upheld:  The Nevada Supreme Court has upheld the conviction and death sentence of a man who killed four people during a 1998 robbery.  Sean Whaley of the Las Vegas Review Journal reports that the court's decision in Johnson (Donte) v. State rejected multiple error claims including a claim that the jury pool did not have a proportionate number of blacks.  Johnson and two accomplices gained entry to a Las Vegas home and bound four young men with duct tape.  The robbers found $240 in cash, a pager, a video recorder and a video game system, before Johnson shot the four victims in the back of the head.  The court's decision noted that the evidence against Johnson was "overwhelming."     

News Scan

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Florida Executes Double-Murderer:  A Florida man who murdered two people in 1983 was executed Thursday, Jessica Schladebeck reports for the New York Daily News. Michael Lambrix was sentenced to death using a procedure that the United States Supreme Court had previously reviewed and upheld in Spaziano v. Florida but later declared unconstitutional in Hurst v. Florida. The Florida Supreme Court held that the new rule does not apply to cases as old as Lambrix's, and the U.S. Supreme Court declined to intervene.

Judge Stays Alabama Execution:  Hours after the U.S. Supreme Court refused to stay the execution of double-murderer Jeffery Borden, a federal district judge granted one.  Ivana Hrynkiw of AL.com reports that Borden's attorneys sought a stay, claiming that use of the sedative midazolam in Alabama's three-drug protocol violated the Eighth Amendment bar to cruel and unusual punishment.  On Christmas Eve 1993, in front of his three children, Bordon murdered his estranged wife and her father.  His guilt was never disputed.  Three hours before Borden's scheduled execution Thursday, District Judge Keith Watkins granted a stay to allow further argument over the use of the sedative.  "Despite the fact that the U.S. Supreme Court has already agreed to proceed with Mr. Borden's execution, the lower federal courts continue to place roadblocks in the vicitms' family's pursuit of justice.  We will seek a new execution date as soon as possible," said the Alabama Attorney General.

News Scan

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$500 to Snitch on a Drug Dealer:  The town of Warren, Michigan is offering $500 to people providing law enforcement with information leading to the arrest of drug dealers.  Jason Colthorp of click on Detroit reports that the program called People Against Illegal Drugs (PAID) will pay the rewards from drug forfeiture funds.  "This program means that all Warren residents will be the eyes and ears in our war against drug pushers," said Warren Mayor Jim Fouts.  The identity of the tipsters will remain confidential, but they will have to provide a contact name and number to receive the reward. 

CA Becomes Sanctuary State:  Governor Jerry Brown signed SB 54 into law today, making California a sanctuary state...sort of.  Fox News reports that in his signing statement the Governor noted that the new law will prevent the "commandeering of local officials" to do immigration work.   But as reported in the LA Times, the Governor insisted on "drastic" amendments to the original bill to allow state law enforcement to grant federal agents access to county jails and exchange information about illegals who have committed crimes in the U.S with federal authorities.  The law prohibits police officers from asking the immigration status of people they come in contact with, but officers most California cities have been forbidden from doing this for years.  The outcome of the sanctuary cities lawsuits attempting to block the cutoff of federal funds to cities which refuse to cooperate with immigration authorities, could have a significant impact on the state, which suffers from huge pension fund liabilities, the highest poverty rate in the U.S. and a crumbing infrastructure.     

Default Mens Rea Requirements

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Bill notes the introduction of the Mens Rea Reform Act of 2017, S. 1902, by Senators Hatch, Lee, Cruz, Perdue, and Paul.  I agree with Bill and the Senators that congressional attention to mens rea is order.  I also agree that strict liability or a mental state of mere negligence should not be read into any criminal statute.  If Congress wants to create such a crime it must say so expressly.

Regrettably, though, this bill goes too far.  The American Law Institute's Model Penal Code gets it right in § 2.02(3).  The comment to that subdivision says:

Subsection (3) provides that unless the kind of culpability sufficient to establish a material element of an offense has been prescribed by law, it is established that if a purpose acted purposely, knowingly or recklessly with respect thereto.  This accepts as the basic norm what usually is regarded as the common law position.  More importantly, it represents the most convenient norm for drafting purposes.  When purpose or knowledge is required, it is conventional to be explicit.  And since negligence is an exceptional basis of liability, it should be excluded as a basis unless explicitly provided.

In the arguments made for this bill and its predecessor, I have yet to see a reason stated for omitting knowingly and recklessly from the default mental state.  My post last year on the predecessor bill is here.  If there is a good argument, let's hear it.

This is critically important.  I would support this bill if amended to follow the MPC provision.  I strongly oppose it in its present form.
The kind of criminal justice "reform" that gets most talked about is "sentencing reform."  That label is code for a return to unserious sentencing for dealers in hard drugs like heroin, and for indulging anything-goes discretion for judges.  In other words, it's a call for a return to the failed policies of the past  --  the kind of policies that brought us a generation's worth of exploding drug use and crime through the Sixties, Seventies and Eighties.

But there's a kind of reform worth doing  --  although, oddly, no Democrats seem interested in doing it.  That would be mens rea reform.  I'm grateful that Sen. Orin Hatch, together with Sens. Cruz, Perdue, Mike Lee and Rand Paul have introduced a bill to get it done.

This should be easy for anyone interested in justice rather than The Agenda.  The idea was summarized by Sen. Hatch in his press release introducing the bill: "Individuals should not be threatened with prison time for accidentally committing a crime or for engaging in an activity they did not know was wrong."

I will add only one brief thought.  Not only is criminally punishing someone for accidentally creating injury morally wrong (tort law, by contrast, provides remedies for negligent injury); it undermines the essential distinction upon which citizens accept the imposition, and the stigma, of criminal punishment  --  that a bad heart deserves a different response from the law than just a poorly functioning brain.

UPDATE:  Kent makes an important distinction I failed to elaborate.  Extreme negligence can indeed stand in the shoes of bad intent for criminal law purposes, as it did in a case I was involved with many years ago, US v. Fleming, 739 F.2d 945 (4th Cir. 1984).  A drunken defendant unintentionally, but with gross negligence, collided with and killed a mother of nine.  It remains one of the most horrible cases I ever dealt with, and no mens rea reform should exclude instances like it from the reach of criminal law.

Sociological Gobbledygook

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"Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power."  -- Justice Hugo Black, concurring in McGautha v. California (1971).

Yesterday in the reapportionment case, Chief Justice Roberts expressed a similar sentiment on transcript page 40.

[T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.
No, Mr. Chief Justice, it's not your educational background.  I call it "sociobabble," a variation on the "psychobabble" theme, but "sociological gobbledygook" will do nicely.
A month ago, the U.S. Court of Appeals for the Eleventh Circuit revived a suit over Alabama's substitution of midazolam for pentobarbital as the first drug of its three-drug execution method.  USCA11 said that the plaintiffs had adequately pleaded the elements required by Glossip v. Gross, including the availability of an alternative.  They alleged that sodium thiopental is available, taking us full circle to the original three-drug method.  The case is Burton v. Commissioner, No. 17-11536.  Burton's is the "lead" case, but there are a total of twelve, including the case of Jeffery Borden.

But an allegation sufficient to state a cause of action and a demonstrated possibility of success on the merits sufficient for a preliminary injunction are two different things.  Thiopental is, in fact, not currently available.  Last Friday, the Eleventh Circuit decided to enjoin the execution of Borden anyway, under the All Writs Act.  Citing its own precedent, the court said that the usual requirement of a likelihood of success on the merits does not apply to the All Writs Act.

So you can stop the execution of a judgment that is already very long overdue just by alleging a "fact" that is patently false?

The Supreme Court today vacated the injunction in Dunn v. Borden, No. 17A360.  The vote was apparently 6-3:  "Justice Ginsburg, Justice Breyer, and Justice Sotomayor would deny the application to vacate the injunction."  No opinions are on the Court's website as of this writing.

Borden's execution date is tomorrow.

News Scan

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Another Try at Federal Sentencing Reform:  In the wake of new national crime statistics for 2016 showing violent crime increases in 33 states and the highest rates of homicide and rape the U.S. has seen in eight years, the same bi-partisan coalition that introduced the "Sentencing Reform and Corrections Act of 2015" has reintroduced the sentence reduction bill in the Senate.  Fox News reports that Senators Chuck Grassley, Dick Durbin, Sheldon Whitehouse, and Mike Lee believe that the measure, which would make thousands of drug dealers eligible for early release and reduce the sentences for new convictions, would "improve public safety and the rule of law by ensuring that penalties match their crime."  Our analysis of the bill, which died in the Senate last year, is here.

Five Killed in Weekend Chicago Shootings:  Over the past weekend in Chicago, 5 people were murdered and 30 others were shot, including a 13-year-old boy.  The Chicago Sun Times reports that this is the seventh straight month of reduced shootings and murders compared to last year.  So far in 2017, murders are down by 7%, with shootings down 16%.  In a related story, Politifact Illinois reports that claims by the Trump Administration that Illinois has the toughest gun laws in the country are untrue.  The  Law Center to Prevent Gun Violence which advocates for stricter gun laws, while noting that the state could impose even stricter gun laws, found that Illinois' gun laws still are considered among the most restrictive when compared with other states and gave Illinois a B+ and ranks it No. 8 in the nation on its smart gun report card.  The group lauds Illinois for, among several rules, requiring firearm owners to obtain a Firearm Owners' ID card that includes a background check and a waiting period on firearm purchases.  From this Politifact concluded that the administration's claim deserved its "pants on fire" rating.
On many contentious social issues, including crime, there is often reason to suspect that researchers are partisans who decide what position they want first and then design a study to provide support for that result.  In the history of the "harder" sciences, there are many examples of researchers being dragged by their data to results they found distasteful, but that is not seen as often in the "softer" ones.

It is refreshing then, to see this article in the WaPo by Leah Libresco.  She studied gun control at FiveThirtyEight, and her research changed her mind.

The Pride of Columbia Law

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I've often published entries here questioning top-ranked law schools, Manhattan liberals, and the media for their carefree bias, breathtaking mendacity, and phony "compassion."  Some might think I've overdone it.

I thus submit this most recent example of just how bad it is:  The former (as of a couple of days ago) vice-president and senior counsel for CBS was hurriedly let go after she published on her Facebook page that she was, "not even sympathetic" to victims of the Las Vegas rampage because "country music fans often are Republican..." 

This lady's name, as reported in the story, is Hayley Geftman-Gold.  She is a graduate of the University of Pennsylvania (full disclosure:  so was my father) and Columbia Law School, two of the most prestigious schools in the country.  

Ms. Geftman-Gold is a wonderfully apt representative of what has gone wrong. I won't even get into the vileness of her statements.  More interesting, because more revealing, is the deceitfulness of the damage control and, yes, the startling stupidity of Ms. Geftman-Gold's original (and only authentic) remark.

News Scan

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Ohio Murderer's Appeal Denied:  The U.S. Supreme Court denied review of Ohio murderer Anthony Sowell's appeal Monday.  Eric Heisig of Cleveland.com reports that Sowell was sentenced to death for raping and murdering eleven women and burying their bodies around his home.  In a 2011 story, Leila Atassi reported that a jury of seven women and five men deliberated seven hours before unanimously voting for a death sentence.  After the sentencing, one juror told reporters that Sowell had winked at her during the hearing.  At trial, defense attorneys claimed that Sowell was a victim of childhood abuse suffering with post-traumatic stress, obsessive-compulsive disorder, cognitive dysfunction, and psychosis, which reduced his responsibility for killing the eleven women and attempting to kill three others who survived.  On appeal, his lawyers argued that his sentence was invalid because jurors did not get to hear about Sowell's offer to plead guilty to avoid a death sentence.

PA Court Overturns Murderer's Sentence:  A three-judge panel in Pennsylvania has ruled that a man who committed robbery/murder when he was 16 was improperly sentenced to life in prison without parole (LWOP) under the U.S. Supreme Court's 2012 decision in Miller v. Alabama.  Jocelyn Brumbaugh of the Tribune Democrat reports that Deauntay Moye was convicted of the January 2015 murder of 21-year-old Stephanie Waters after stealing about $250 worth of marijuana from her.  After shooting Waters in the neck and killing her dog, Moye and an accomplice drove around in her car smoking pot, while she slowly died in the back seat.  The trial judge determined that Moye was the leader and fired the shot that killed the Waters.  Last June, the PA Supreme Court held that only the most irredeemable juveniles should receive LWOP.  Before the Superior Court, Moye's attorneys argued that he should receive a shorter sentence because his age made him more impulsive and vulnerable to family and peer pressure.

Anti-Science Dogmatism

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From Galileo to the present, dogmatism has been the greatest threat to science.  In this post last month I noted the distortion of criminology by political correctness.  The threat is not limited to the sciences we usually think of as social sciences, though.  Biologist Heather Heying has this op-ed in the WSJ:

The revolution on college campuses, which seeks to eradicate individuals and ideas that are considered unsavory, constitutes a hostile takeover by fringe elements on the extreme left. Last spring at the Evergreen State College, where I was a professor for 15 years, the revolution was televised--proudly and intentionally--by the radicals. Opinions not fitting with the currently accepted dogma--that all white people are racist, that questioning policy changes aimed at achieving "equity" is itself an act of white supremacy--would not be tolerated, and those who disagreed were shouted down, hunted, assaulted, even battered. Similar eruptions have happened all over the country.

What may not be obvious from outside academia is that this revolution is an attack on Enlightenment values: reason, inquiry and dissent. Extremists on the left are going after science. Why? Because science seeks truth, and truth isn't always convenient.

The left has long pointed to deniers of climate change and evolution to demonstrate that over here, science is a core value. But increasingly, that's patently not true.

The Chokehold Issue

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Barry Latzer has this article in City Journal on the Eric Garner case.

This is a classic situation of the law as written versus the law as applied. Legally speaking, to hold Panataleo accountable for a chokehold smacks of an ex post facto law (or its due-process equivalent): punishment for acts not clearly prohibited at the time that they occurred. Or, to use a sports analogy, penalizing Pantaleo for this offense would be moving the goalposts. Because the Garner case, tragically, led to a death, and because it was racially charged and heavily covered in the media, Pantaleo faces sanctions for conduct that has not been seriously punished in the last two and a half decades. And that's simply unfair.

Hurricane Extensions

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The U.S. Supreme Court today issued a bit of disaster relief for litigants in Puerto Rico and the U.S. Virgin Islands:

IT IS ORDERED that the deadline to file a petition for a writ of certiorari in a case arising from the state or federal courts of Puerto Rico or the Virgin Islands and due on or after the date of this order is extended to November 20, 2017, to the extent that the extension is within the Court's authority to order. See 28 U.S.C. § 2101(c) (limiting available extensions to 60 days from due date for petitions for writs of certiorari in civil cases).

Um, exactly how many state courts are there in Puerto Rico and the Virgin Islands?

USCA5 Nominations

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For many people who did not support Donald Trump during the primary contest, judicial nominations were a major reason to vote for him in the general election.  The WSJ has this editorial praising a new batch of nominations, focusing on those for the Court of Appeals for the Fifth Circuit, covering Texas, Louisiana, and Mississippi.

The Las Vegas Shooter

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William Wan, Sandhya Somashekhar, Aaron C. Davis and Barbara Liston have this story in the WaPo on the Las Vegas shooter, Stephen Paddock.  He seems to be something of an odd duck, but there is no indication of what would have driven him to mass murder/suicide.

First Monday in October

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The U.S. Supreme Court opens its new term on a particularly somber First Monday, with a horrific crime in Las Vegas in everyone's thoughts.  The long orders list from the Long Conference is here with few surprises.  The Court turned down Florida murderer Cary Lambrix, who should have been executed many years ago, on his request to review the Eleventh Circuit's decision in his case.  He has another petition to review a Florida Supreme Court decision pending. 

Regrettably, the Court also turned down Florida's petition in Florida v. Franklin, No. 16-1170, the state's latest attempt to get the high court to review the Florida Supreme Court's excessively expansive interpretation of Hurst v. Florida.  The split with neighboring Alabama remains unresolved.

Sheriff Joe's now-moot mandamus petition is denied, of course.

Anthony Elonis, who tried to excuse his blood-curdling threats on Facebook as merely imitating his favorite rap "artist," was denied a second trip to SCOTUS.  The primary post on the earlier decision is here.  Type "Elonis" in the search box for many others.

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