November 2017 Archives

Update:  Kelly Choate of KBRE/KYOU interviewed Don Williams, the father of Officer Eric Williams.

Congressman Tom Marino of Pennsylvania today issued this press release:

Washington, D.C.--Today, Congressman Tom Marino (PA-10) and Congressman Lou Barletta (PA-11) introduced H.R. 4493, Eric's Law, named in honor of fallen Bureau of Prisons Correctional Officer Eric Williams.

On February 25, 2013, Bureau of Prisons Correctional Officer Eric Williams was viciously murdered by an inmate at United States Penitentiary Canaan in Wayne County, PA. The inmate was jailed at USP Canaan serving an 11-year sentence for his role in gang-related drug trafficking in Arizona. The inmate had also been convicted in Arizona for the murder of a rival gang member and was scheduled to serve a life sentence following his incarceration at Canaan.

In the trial for Eric's killer, there was no dispute of guilt with the defense stating that he was guilty "beyond all reasonable doubt." The jury deliberated for 5 hours and returned a split decision, with 11 jurors in favor of the death penalty and 1 juror voting for life in prison. One juror flatly stated during deliberations that they would not vote for the death penalty, stating that she had a son in prison and that she felt bad for the defendant's mother.  This resulted in an automatic sentence of life in prison with no possibility of parole.  Since the defendant was already scheduled to serve life in prison, there essentially was no consequence for the brutal murder of Eric.

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Habitual Criminal Charged With Murder:  A habitual felon given early parole in 2016 has been charged with murdering two people in Iowa City.   Associated Press writer Ryan Foley reports that Curtis Cortez Jones was granted early parole in March 2016 after serving 11 years of a 40-year armed robbery sentence.  A month after his release he was returned to prison for stealing a credit card.  Despite being assessed as high risk for committing additional crimes, the state parole board released him again.  On April 22, 2017 police believe Jones robbed and murdered 34-year-old Jonathan Wieseler. Two months later Jones is believed to have robbed and murdered Ricky Little, a 46-year-old cab driver.  Last Summer the Iowa Governor Kim Reynolds signed the Targeted Community Alternatives to Prison into law.  The measure's objective is to reduce the state's prison population by leaving so-called low level felons in communities.    

The Carpenter Argument

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The U.S. Supreme Court heard oral argument today in Carpenter v. United States, No. 16-402, the much-watched case regarding whether a warrant is required to obtain records from a cell phone company showing which cell towers the defendant's phone connected with at the time that robberies were being committed.  The transcript is now available on the Court's website.

I don't think it bodes well for Carpenter that Justice Kennedy peppered his lawyer with questions throughout his argument and said not a word during the government's argument.  That said, though, Justice Kennedy is among the most difficult to "read" from oral argument, so it is not certain he will vote for the government.

Justice Gorsuch clung to a property rights theory like a dog to a bone, while DSG Dreeben came close to saying, "Seriously? How can anybody think the customer has a property right in these records?"  Of course he didn't really say that, but I will bet a beer he was thinking it.

In a FedSoc teleforum afterward, Prof. Orin Kerr thought the argument went well for Carpenter and that he might get a majority of votes but not on a single theory.  I hope not.  We really don't need another fractured opinion that leaves everyone scratching their heads.  (Kerr wrote an amicus brief supporting the government, a rarity in academia, to put it mildly.)

A major theme in the argument was that privacy needs to be protected but that actually drawing the line would be difficult and possibly arbitrary.  It really would be better for the rules to be made legislatively in this area.

Stay tuned.

The Göring Gambit

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There is one sure-fire way for a convicted defendant to avoid execution of his sentence: suicide.  Hermann Göring infamously took this way out on October 15, 1946, just before he was to be hanged.  The Nuremburg tribunal had denied his request to be shot instead.

Today, Cleve Wootson reports in the WaPo:

Shortly after hearing his fate, former Bosnian Croat military chief Slobodan Praljak shouted "I am not a war criminal!" and lifted a vial of liquid to his lips.

He tilted his head back and swallowed.

A short time later, he told the confused court -- and the judge who had affirmed his 20-year sentence for murdering Muslims and other war crimes  -- "I just drank poison."

His death was reported by Croatian state TV later on Wednesday.

News Scan

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Hitman Faces Death Penalty:  A Louisville drug dealer who boasted that he had murdered people for hire and had killed 10 men, will face trial on December 1 for killing a rival drug dealer twelve years ago.   Andrew Wolfson of the Louisville Courier Journal reports that RIcky Kelly is charged with the first degree murder for shooting drug dealer Lajuante Jackson in 2005.  The evidence included Kelly's 2010 description of the murder to a cellmate who was wearing a wire.  The prosecution told reporters that it has 20 cooperators including members of Kelly's drug-trafficking crew who can corroborate Kelly's statements regarding the killing.  A former prosecutor called Kelly "the most frightening person I've come across in 30 years of law enforcement." 

4 Time Drunk Driver Kills 4:   A California man who plead guilty to his 4th DUI in 2013 killed four members of a family in a car crash Saturday night.  Benjy Egel of the Sacramento Bee reports that Fred Lowe was driving drunk on a suspended license when he caused a deadly five-car pileup on a freeway near San Pablo.   According to the CHP Lowe's Mercedes struck a Nissan carrying the Horn family so hard it flipped the car over the median and crashed into three vehicles heading the opposite direction injuring five people, and killing four in the Nissan.  Lowe kept driving and exited the freeway before hitting a parked car.   He was arrested while attempting to flee on foot.  Lowe had four convictions for DUI and one for illegal drugs between 1999 and 2013.  In 2011 and again in 2014, California lowered the penalties for DUI and drug possession, and barred significant jail time no matter how many times an offender is convicted of them.    

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Costco Gunman Shot by Off Duty-Officer:  Another possible mass shooting was prevented Sunday when an off-duty Kansas City police officer shot and killed a man who stormed into a crowded Costco brandishing a firearm.  KCTV Kansas City reports that according to witnesses, at about 11:00 am Sunday a screaming man with what appeared to be a .45 caliber revolver in his hand entered the store and was engaged by a yet-unnamed off duty police officer carrying his service weapon.  While it has not been reported if the gunman actually fired his weapon, one witnesses said that he heard eight gunshots.   

Enforcing CA Death Penalty:  Since the adoption of Proposition 66, California's death penalty reform law and the recent state Supreme Court decision upholding the initiative in its entirety, the only reason murderers are not being executed is because of the Governor's office has yet to finalize the state's new execution protocol.  Maura Dolan of the Los Angeles Times reports that no one can predict when executions will resume.  "(Governor) Brown is the shot caller," over finalizing lethal injection protocol which stands in the way of carrying out the death penalty in California said Deputy Los Angeles District Attorney Michele Hanisee.  According to U.C. Berkeley law school Dean Erwin Chemerinsky, a devout death penalty opponent, it is conceivable that Brown and defense lawyers could delay executions until Brown steps down as governor in 2019.  While other state's have been utilizing execution protocols upheld by the courts to execute their worst murderers, California has failed to "come up with a workable protocol" for more than 10 years, wrote 9th Circuit Court of Appeals Judge Alex Kozinski.   The article notes that Brown opposes the death penalty but enforced it as Attorney General.  The fact remains that no California murderer was executed during Brown's term as Attorney General, or during the last seven years he has served as Governor.     

The Blue Slip Dies Quietly

Kent blogged here, and I here, about the end of the wildly excessive form of senatorial courtesy known as the blue slip, under which a single senator could block a judicial nominee notwithstanding excellent qualifications and clear majority support.  Some commenters doubted that the blue slip was really dead.  I trust this tidbit from today's Washington Post has laid that to rest:

Senate Republicans are officially blowing up the blue slip this week for circuit court nominees, ending a century-old tradition. Barack Obama and Democrats, when they were in charge, respected the long-standing prerogative of senators to block nominees they don't approve of from their home states. That's one reason there are so many vacancies. But Judiciary Committee Chairman Chuck Grassley (R-Iowa) bowed to pressure from the White House and scheduled confirmation hearings for two appellate courts nominees where a home state senator had not returned the blue slip.

The last straw for the blue slip was when Al Franken, taking time off from various other activities, refused to return the blue slip for Minnesota Supreme Court Justice David Stras, citing absolutely nothing suggesting that Stras has less than superb judicial qualifications, and settling for the objection that he was "too much like Clarence Thomas."

There's an old line that comes to mind here:  If you abuse a privilege, you lose it.  The Left's willingness to play into President Trump's hands by dead-end, partisan opposition to highly qualified nominees (see, e.g., Neil Gorsuch) continues to be the gift that keeps on giving.

P.S.  It wasn't that Grassley "bowed to pressure from the White House."  It's that Grassley, a gentleman and a respecter of Senate traditions, got pushed over the edge by bovine obstructionism.  

Assurances from Cyber-Burglars?

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Greg Bensinger and Robert McMillan report for the WSJ:

Uber Technologies Inc. on Tuesday revealed it paid hackers $100,000 in an effort to conceal a data breach affecting 57 million accounts one year ago, a disclosure that adds to a string of scandals and legal problems for the world's most highly valued startup.

The ride-hailing firm said it fired its chief security officer, Joe Sullivan, and deputy Craig Clark for their roles in the breach and for covering it up.

In addition to the names, emails and phone numbers of millions of riders, about 600,000 drivers' license numbers were accessed, Uber said. Uber said financial information such as credit cards and Social Security numbers weren't taken. Uber said it identified the hackers and "obtained assurances" they had destroyed the stolen data.

Oh, well, if they obtained assurances from the criminals that makes me feel so much better.

Hidalgo v. Arizona

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Jordan Rubin has this article in BNA's Criminal Law Reporter looking at the certiorari petition in Hidalgo v. Arizona, No. 17-251, on yesterday's SCOTUS conference list.  This is Neal Katyal's quixotic effort to get the Supreme Court to reopen the question it settled 41 years ago in Gregg v. Georgia, i.e., that capital punishment is constitutional.  I don't think it has much of a chance, as noted in the story.

Stay tuned for the orders list, 9:30 a.m. EST Monday.

Update:  The case has been relisted for the December 1 conference.
Legalizing marijuana saves bushels of money because we no longer have to spend a dime on marijuana enforcement, right?  Um, not quite.  KCRA, Sacramento, reports:

The Sacramento City Council approved funding Tuesday night to enforce new marijuana laws set to take effect on Jan 1.

Sacramento police will get $850,000 for the first six months of 2018 in order to crack down on illegal marijuana grows in homes and neighborhoods.

That money would cover three sergeants, 12 officers and a city employee responsible for getting rid of the seized marijuana and cultivation equipment.

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Homeless & Hepatitis Spreading in LA:  With roughly 50,000 homeless living on the streets in Los Angeles, many forced to defecate on the streets due to a shortage of accessible toilets, the city is suffering an outbreak of hepatitis A.  Tori Richards of Fox News reports that as the homeless population has increased dramatically over the past several years, the city has failed to provide services to keep up.  In downtown LA's Skid Row district for example, there are over 1,777 homeless living on the streets each night and only 9 public toilets which are largely inaccessible.  In the trendy west LA beach town of Venice, which is a popular homeless destination, local officials are power washing the streets with bleach every few days.  It is clear that local government leaders have placed the problem too low on their priority list.  Now city leaders are talking about increasing taxes to help pay for more services. "You have all these government programs going to illegals, they should be using existing funds (for the homeless)," said former LA County Supervisor Mike Antonovich.  "We don't need new taxes.  It's already at the breaking point."  Over the past two years Los Angeles County has spent $1.3 billion on welfare payments to illegal immigrants.      
A quadruple murderer whom 11 out of 12 jurors believed should be executed has been let off with life in prison due to the state's ill-conceived single-juror veto law.  AP reports (emphasis added):

A Florida man convicted of killing his ex-girlfriend, her new boyfriend and her parents has avoided the death penalty.

The Tampa Bay Times reports 11 of 12 jurors voted Tuesday for 32-year-old Adam Matos to be executed, but without unanimous agreement, Matos automatically received a life sentence. The jury convicted him last week of four counts of first-degree murder.

Authorities say Matos fatally shot Megan Brown and her father, Greg Brown, at their Hudson home in 2014. He also fatally beat Margaret Brown and Nick Leonard with a hammer, jurors heard.

When the Hurst-fix bill was going through the Florida Legislature, I told everyone who would listen that a single-juror veto system (1) is not constitutionally required; and (2) will lead to arbitrary results and miscarriages of justice.  Nobody was interested.  This is the result.

Once more, with feeling, the right way to do it is the way Arizona and California do it.  The jury must be unanimous one way or the other to reach a verdict, just like in the guilt phase.  If the jury hangs in the penalty phase, declare a mistrial and empanel a new jury, just like in the guilt phase.  Why can't everyone who isn't dead set against the death penalty see that?

U.S. Asks SCOTUS For Travel Ban Stay

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Back in September, the 90-day travel ban on immigration from six particularly problematic countries expired, and in October the Supreme Court dismissed the challenges to the ban as moot.  See posts of September 24, September 26, October 10 and October 24. As envisioned in the original executive order, the short-term ban was replaced by a more detailed, considered rule based on the ability and willingness of the countries at issue (a somewhat different set from the prior six) to provide the information needed to vet those seeking entry.

Despite the marked differences in the orders, a U.S. District Judge in Hawaii granted a temporary restraining order against enforcement of the key section except as to Venezuela and North Korea. A single district judge, it seems, is now better suited than the Department of Homeland Security to determine if the means chosen by DHS, in consultation with the Departments of State and Defense, is a good fit to the end to be achieved on a matter of national security and foreign relations. Or at least he thinks he is.

The government consented to the conversion of the TRO to a preliminary injunction to make it appealable. The Ninth Circuit stayed the injunction, with the major exception of "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." That is a hole you can drive a truck through (a truck loaded with explosives), so the government has asked the Supreme Court for a complete stay.

FedSoc Convention Video/Audio

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The video and audio recordings of the Federalist Society's 2017 Annual Lawyers Convention are now available here.  The Criminal Law Practice Group's panel was Thursday at 3:30.  The address by Attorney General Sessions was Friday at 2:15. 
I  bring you the beginning of this story from the Washington Post, revolting even by the standards we sometimes need to discuss on this blog (emphasis added):

About 4:02 p.m. on Friday, police in Jerseyville, Ill., were dispatched to the Jersey Community Hospital in response to a 6-year-old boy's death.

Police say the child starved to death last week after his father and stepmother spent two years withholding food from him as punishment.

The boy, barred by Michael Roberts and Georgena Roberts from eating regularly since December 2015, died Friday weighing just 17 pounds, according to court documents. 

Some questions:  Do you think this was really "punishment" for anything?  Do you think it might just have been torture for the fun of it?  How do you think it feels to be starving to death for a third of your life?  Do you think a jail term, whatever its length, is proportionate to the grotesquely prolonged cruelty and sadism of these people?

UPDATE:  Most comments come in during the first day.  I see now, after waiting that day, that our usual abolitionist spokesmen  --  seldom at a loss to tell us how morally and intellectually superior their stance is  --  have nothing to say about this case.  It's usually a mistake to construe silence as an admission, but not this time.

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Goodbye Charlie:  The world improved slightly yesterday when the twisted, manipulative serial murderer Charles Manson died of natural causes at 83.  Jamie Schram of the New York Post walks us back through Manson's life of crime and endless breaks from the criminal justice system.  In the late 1960s, he formed a cult known as the "Manson Family" made up of small-time criminals and runaway girls which lived on the Spahn Ranch in northwest Los Angeles County.  In 1969, after being turned down for a record contract by music producer Terry Melcher, Manson ordered the murders of people living at Melcher's former residence, including pregnant actress Sharon Tate, coffee heiress Abigail Folger and her boyfriend Wojciech Frykowski, and hair stylist Jay Sebring.  All four were butchered to death and "pig" was written in blood on the front door.  The next night, Manson accompanied cult members to the home of supermarket owner Nino LaBianca and his wife Rosemary.  There the couple was bound and stabbed to death as Manson gave instructions.  The words "rise," "death to pigs," and "helter skelter" were written in blood in the home.   At trial, the jury heard evidence that Manson had wanted the public to believe that the murders were committed by blacks, which he hoped would spark a race war.   

Soros-Funded Group Plots to Replace DAs:  A progressive donor network, the Democracy Alliance, held its fall conference in California last week to discuss plans to elect liberal/progressive district attorneys in counties across the U.S.  Joe Schoffstall of the Washington Free Beacon reports that the group, which was co-founded by liberal billionaire George Soros, rolled out 30 district attorney races targeted for 2018 as part of an effort to overhaul the nation's criminal justice system.  The group's most recent victory was the November 7 election of Larry Krasner as District Attorney of Philadelphia.  With nearly $2 million in contributions from Soros, Krasner beat out Republican prosecutor Beth Grossman by 40 points.  Krasner, a defense attorney, represented Occupy Philadelphia and Black Lives Matter, and had sued the police department over 75 times.      

News Scan

More MS-13 Members Arrested:  ICE officials announced yesterday that over 200 members of the notorious MS-13 gang have been arrested across the country as part of a federal and state crackdown called Operation Raging Bull.  Tisha Lewis of FOX5 reports that the operation's objective is to completely dismantle the El Salvadorian gang which has an estimated 10,000 members in the United States.  Of the 214 arrests made 93 were for federal or state criminal charges and 121 on immigration violations.  Of the arrested gang members, 198 were foreign nationals with only 5 having legal status to be in the country.

Habitual Felon Charged With 3rd Murder:  An Alabama criminal found not guilty of one 2013 murder, who took a plea bargain on another murder that same year because a witness had disappeared, has now been charged with a third murder committed last month.  Carol Robinson of the Birmingham news reports that because of the plea deal, Jimbroski Quantez Peterson, 24, was released on probation last year for time served.  He was arrested in January and again in September on drug charges, but was  released awaiting trial for those offenses.  His probation was revoked by a judge in early October, days before the murder of Maurice Morris at a bar on October 15.  Moore was the father of five.  Peterson is being held without bail. 

Mass Shooters Linked to Domestic Violence:  Data compiled by the group Everytown For Gun Safety indicates that roughly 1/3 of the public mass shootings (four victims or more) which have occurred in the U.S. since 2009 had a history of domestic violence.  Writing for Time Magazine, Charlotte Alter reports that in 46% of both public and private mass shootings over the same period, a domestic partner or family member was a victim.  Devin Kelly, the Texas Church shooter, and Kevin Neal, who killed five in a small Northern California town earlier this week, had priors for beating their wives.  While both state and federal laws prohibit men with records of domestic violence from buying or owning a gun, the data on these offenders often never makes it into state and federal databases and even when they have, the NRA reports that illegal gun prosecutions dropped by 40% during the Obama Administration.  Additionally, in states such as California, sentencing reforms have removed domestic violence, even with serious injuries, from the crimes eligible for a prison sentence.

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Ohio Embraces Sentencing Reform:  The Ohio Legislature has passed a sentencing reform measure, the Targeted Community Alternatives to Prison (TCAP) law, to reduce the state prison population and leave non-violent offenders in the community for rehabilitation.  Josh Sweigart of the Dayton Daily News reports that the TCAP prevents low-level felons from being sentenced to prison in the state's 10 largest counties.  The bill's supporters point to over 4,000 prison inmates who would have qualified for county jail, probation and services last year, rather than time in state prison.  Under the new law, counties can receive grants to increase probation staff and services for offenders.  Law enforcement officials are not buying the happy talk.  Butler County Sheriff Richard Jones called TCAP and "unfunded mandate that's coming our way and it's going to shove felons down our throats.  We're going to have to start pushing people out of jail to make room for these people, who should be in prison."   California did this seven years ago and crime has been increasing significantly, particularly violent crime.  Most county jails are overcrowded, and state grants to counties are not coming close to covering the costs.  After releasing over 30,000 felons from prison California's prison budget has increased by $1.7 billion. 

Baltimore Cop Gunned Down:  A 18-year veteran of the Baltimore police department was shot and killed Thursday.  Elizabeth Zwirz of Fox News reports that detective Sean Suiter was investigating a murder when he approached a man behaving suspiciously.  The suspect shot the detective in the head and ran off, triggering a citywide manhunt.  The officer was the married father of five children.  His death marks the 300th homicide this year in the city of 620,000, an effective rate of over 48 homicides per 100,000. 

FedSoc Convention Live Stream

The Federalist Society's Annual Lawyer's Convention is tomorrow through Saturday.  The FedSoc is live streaming selected portions of the program at this page.  The Criminal Law panel, titled What Should Be Done to Address Rising Crime Rates, is tomorrow at 3:30 - 5:00 EST. The address by Attorney General Sessions is Friday at 2:15 - 2:45.

The Difficulties of Having an Honest Debate

One of the very neat things about Crime and Consequences is the opportunity to have an honest debate.  Within normal rules civil discourse, debate is welcome here, and there have been numerous enlightening debates about, for example, the death penalty, sentencing, judicial selection, and police behavior.

Of late, I have been blogging less, and Kent's entry today, Known Felon With Gun Goes on Shooting Rampage, reminds me why. 

The entry highlights something we have seen again and again:  A known, dangerous criminal who could have and should have been in jail was set free; does dreadful and, in this and other cases, lethal damage; yet the drumbeat about how we have a problem with overincarceraion goes on without a hitch, simply whistling past the huge and massively documented costs of underincarceration.

It's simply impossible to have a worthwhile debate with people who will not so much as acknowledge, much less take seriously or give a forthright accounting of, the costs their policies will impose and are imposing.
Another shooting, this one from a remote area of Northern California.  Jim Schultz reports for the Record Searchlight in Redding.

Five people are dead, including the suspect, in a mass shooting at and around a school some 15 miles southwest of Red Bluff, where at least another 10 people have been hospitalized -- some of them children.
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The Rancho Tehama Reserve -- a subdivision home to about 1,485 people -- is described on its website as a "quiet private country community" located 12 miles west of Interstate 5 between Red Bluff and Corning. The community is a place "where people are friendly and the pace is relaxed," the website reads.
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Resident Brian Flint said he got a call in the morning that his roommate was injured and that his truck had been stolen. It turned out his neighbor was the gunman, Flint said.

"The crazy thing is that the neighbor has been shooting a lot of bullets lately, hundreds of rounds, large magazines," Flint said. "We made it aware that this guy is crazy and he's been threatening us."

Living near the gunman was "hell," Flint said, and the man was a known felon who often harassed him and his neighbors.

If the as-yet-unidentified man was a known felon and neighbors notified law enforcement that he was armed, shooting hundreds of rounds, and threatening people, why wasn't he in jail?  It is much too early to point fingers, of course, but this is a question that needs answering.

Update:  Fox News reports that the murderer was Kevin Neal, who was free on bail after stabbing his neighbor last January.  Since then neighbors had reported several times to police that he had been firing guns in his yard.  The day before the shooting rampage, police had responded to his home on a domestic violence call.  Domestic violence is not considered a serious crime under California's Realignment.  In a different state, It is likely that he would have been in jail for his prior offenses and illegal possession of firearms.     

News Scan

Ohio Murderer Facing Execution:  A double-murderer in Ohio will be given a special pillow to help him breathe during his execution, which is scheduled for Wednesday.  Andrew Welsh-Huggins of the Associated Press reports that Alva Campbell's decades-long, two-pack-a-day smoking habit resulted in his chronic obstructive pulmonary disorder, making it difficult for him to breathe while lying on his back.  Campbell, an habitual felon, was paroled in 1992 after serving 20 years for killing a man in Cleveland.  In 1997, while facing trial for several armed robberies, he faked paralysis and was transported to court in a wheelchair.  Before reaching the courtroom, Campbell overpowered a sheriff's deputy, took his gun, and carjacked an 18-year-old, whom he later murdered with two gunshots to the head.  Last week, Governor Kasich rejected Campbell's request to commute his death sentence.

Update:  The U.S. Supreme Court denied a stay and a petition to take up the case for full review.  No dissent is noted.

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Illegal Immigrant Arrested for Attempted Murder:  An MS-13 gang member, previously deported from the U.S., has been arrested in Colorado for attempting to murder a woman.  Fox News reports that Angel Ramos was arrested in Fort Collins last Friday after a one-week manhunt.  On November 4, Ramos allegedly stabbed his girlfriend with a screwdriver while they were in her car.  After the victim jumped from the car, Ramos drove over her leg and then attempted to put her in the trunk before fleeing.  Tom McGhee of the Denver Post reports that local law enforcement confirmed Ramos is a member of the notorious MS-13 street gang and is wanted for murder in El Salvador.  He has been charged with attempted first-degree murder and several other crimes.

Murderer With Memory Loss Faces Execution:  An Alabama man sentenced to death 32 years ago can be executed even though he is suffering memory loss.  In 1985 Vernon Madison crept up behind Officer Julius Schulte and shot him twice in the head at close range.  Last year, the Eleventh Circuit ruled that Madison's memory loss as a result of strokes he suffered while in prison made him ineligible for execution.  Richard Wolf of USA Today reports that the U.S. Supreme Court's November 6 per curiam decision in Dunn v. Madison reversed the lower court's ruling, holding that while Madison may not remember the details of the murder, the fact that he has a rational understanding that he was convicted and sentenced to death for the crime is distinguishable from the Eleventh Circuit's finding that Madison "does not rationally understand the connection between his crime and his execution."  In a concurring opinion, Justice Breyer repeated his concern that the death penalty might be unconstitutional.

SCOTUS Takes No New Criminal Cases

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The U.S. Supreme Court issued an order list today, taking up three civil cases but no criminal cases.

Update:  One of the three civil cases is somewhat crime-related.  Amy Howe describes Lozman v. City of Riviera Beach:

In Lozman's first visit to the Supreme Court, the justices ruled that Lozman's floating home was not a "vessel" for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.

The charges against Lozman were quickly dropped, but that didn't end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman's retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.
Another interesting case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, also involves free speech.  Here is the opening paragraph of the Ninth Circuit's opinion:

Veterans Day 2017

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Home of the Free Because of the Brave
Paul Hammel and Joe Duggan report for the Omaha World-Herald:

LINCOLN -- The State of Nebraska took a big step Thursday toward executing its first death-row inmate in 20 years, using an untried combination of lethal-injection drugs.

Attorney General Doug Peterson said Thursday that he is prepared to request a death warrant for Jose Sandoval after at least 60 days, which is the minimum notice period for condemned inmates under the state's execution protocol. The Nebraska Supreme Court issues death warrants if an inmate has no pending appeals.
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The Nebraska Department of Correctional Services notified Sandoval that it will inject four drugs in the following order: diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride.

The Legal Profession Enabling Rape, Part II

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In this entry, I took issue with lawyers who write non-disclosure agreements (NDA's) to furnish to clients for the purpose of helping them muzzle women they have sexually abused or, sometimes, outright raped.  The Harvey Weinstein scandal was the occasion for that entry.

Things have gotten worse.  Yesterday, the New York Times ran a story about a previously very highly regarded lawyer, David Boies, who  --  to translate the somewhat opaque language in which the story is written  --  hired a "private investigative firm" to dig up dirt on one of Weinstein's numerous victims in order to bludgeon her into silence.

The reason the Times is angry about this, as it full well has a right to be, is that Boies was trying to prevent the Times, which was at the time also a client of his, from getting what would have been a fantastic scoop.  The Times is correct in viewing this as a betrayal.

But to my way of thinking, there is something else much more appalling about Boies' behavior:  It's another instance of a lawyer's not merely seeking, through a contractual clause, to suppress truthful information about his client's vile (and criminal) behavior, but of promoting a blackmail scheme to threaten the victim.

"Zealous advocacy," embrace your true name.

The Vienna Convention, Yet Again

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As noted in the update to yesterday's News Scan, Florida and Texas both carried out executions yesterday.  The Texas case involved the Vienna Convention claim rearing its ugly head again.

The usual suspects make the usual noises that the United States violated international law by going ahead with the execution, but it did not, either in this case or the landmark Medellin case.  Some background info is given in this post from 2014 on another Vienna Convention case.

In a nutshell, the United States is treaty-obligated to comply with the decision of the International Court of Justice in the Avena case, even though it is wrong, in the 55 cases that were before the ICJ in that matter.  The Optional Protocol, to which we were a party at the time but have since withdrawn, requires compliance.

However, compliance means only that a court review the case to determine if there was any prejudice from the violation.  See ¶ 121.  The ICJ rejected Mexico's contention that retrial or resentencing was required in every case.  See ¶ 123.

News Scan

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Mexico Tries to Stop Execution:   A Mexican national who raped and murdered his 15-year-old cousin in 1997 is scheduled for execution tonight in Texas.  Bamini Chakraborty of Fox News reports that the government of Mexico has petitioned to stop the execution, arguing that an international treaty was violated when murderer Ruben Ramirez Cardenas was not allowed to contact the Mexican consulate after his arrest.  The Mexican government is not disputing that Cardenas raped and killed the girl, arguing only that by failing to have him consult with Mexican authorities prior to his trial, Texas prosecutors violated the "Vienna Convention on Consular Relations" rendering his conviction and sentence invalid.  When asked to comment, Rene Guerra, who prosecuted Cardenas said, "This guy deserves the death penalty."

Update:  As reported by Reuters, Cardenas was pronounced dead at 10:26 pm last night.  Also Florida double-murderer Patrick Hannon was executed last night. 

A Simple Suggestion on the Death Penalty

The death penalty continues to draw significant majority support, although less so now than over the last couple of decades.  See Kent's report on the Gallup Poll, here.  It also seems safe for the indefinite future from abolition in the Supreme Court, as I noted Monday.

There was a time when abolitionists argued principally that the death penalty is immoral, because, first, the government should not be killing people, and second, there is always the risk of executing the innocent, with no going back if we make a mistake.  These arguments failed to move the needle much for at least the last 40 years, so abolitionists have turned in a different direction:  They now say the death penalty simply costs too much and takes too long.

They're right about that, of course.  It does take too long and it costs a boatload  --  because abolitionists have made sure it does, by creating dozens and dozens of manufactured procedural issues having nothing to do with guilt, innocence or moral culpability.

The problem is that abolitionists' proposed solution does not follow from their premise.

Deadlines and Jurisdiction

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When is a filing deadline jurisdictional, and when is it a "mandatory claim-processing rule"?  The U.S. Supreme Court addressed that issue today in Hamer v. Neighborhood Housing Service of Chicago, No. 16-658.  This is a civil case, but criminal lawyers who handled federal habeas corpus petitions need to pay attention.  Federal habeas corpus cases are "civil" for this purpose.

The difference between the two types of deadlines arises mainly when the other party does not object.  An objection based on a "claim-processing rule" can be forfeited by failure to object, but a jurisdictional defect means that everything that happens in the case is void, objection or not.

First Do No Harm?

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This story just keeps getting weirder.  Friday, Sen. Rand Paul, a medical doctor, was attacked by a neighbor, who is also a doctor.  The extent of his injuries and the reason for the altercation is a story that keeps dribbling out.

News Scan

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Initiative Launched to Fix CA Sentencing:  Assemblyman Jim Cooper ( D) Elk Grove, Sacramento District District Attorney Anne Marie Schubert and several law enforcement and victims groups recently announced a ballot initiative to fix some of the unintended consequences of the state's "Public Safety Realignment" law (AB109) and Proposition 47.  Lance Armstrong of the Elk Grove Citizen reports that the measure would add several offenses to the list of violent crimes not eligible for early parole from prison including residential burglary, rape of an unconscious person, and assault on a police officer. The measure would also require the parole board to consider an inmate's entire criminal record when determining if an inmate should be eligible for release.  The measure would require probation be terminated if an offender violates the conditions for a third time or fails to attend a violation hearing.  Finally, DNA samples would be required for offenders who commit crimes converted from felonies to misdemeanors by Proposition 47, and felony status would be restored for a third theft of property valued at $250 or more.  The proponents must gather roughly 370,000 signatures to put the initiative on the November 2018 ballot. 

USCA9 Chastised on AEDPA, Yet Again

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The U.S. Supreme Court issued its first two decisions of the October 2017 Term today.  As usual this early in the term, they are "per curiam" decisions reversing a lower federal court without setting the case for a new stage of briefing and oral argument and with an opinion "by the court" with no justice identified as the author.

Bill noted one of the opinions, in an Alabama capital case, earlier today.

The second case, Kernan v. Cuero, No. 16-1468, is yet another case of the Ninth Circuit failing to respect the limits Congress put on its authority to second-guess state court decisions in the Antiterrorism and Effective Death Penalty Act of 1996.

The Cause of Increased Homelessness

What is the cause of the recent increase in homelessness in California?  El Cajon Mayor Bill Wells has this op-ed in the San Diego Union-Tribune placing the blame on the California Legislature and its ideological anti-personal-responsibility agenda, although he notes an ill-conceived initiative and a Supreme Court decision as well.

News Scan

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West Coast Homeless Crisis:  Gillian Flaccus and Geoff Mulvihill of the Associated Press report on the massive and growing homeless population flooded across California, Oregon and Washington.  The reporters estimate that there are 168,000 homeless living on the streets in the three states with roughly 400 homeless camps spread between San Diego and Seattle.  The popular reason for the epidemic is purported to be a shortage of affordable housing driven by high tech, particularly in the larger cities. 

Broken Policing:  Manhattan Institute scholar Heather MacDonald has this piece in today's City Journal, discussing the Big Apple's abandonment of "Broken Windows" policing.  With Mayor de Blasio, who is uncomfortable with proactive policing, likely to win a second term tomorrow, MacDonald cites a NY Times story which unwittingly indicates that  "cutting back on such enforcement violates the wishes of the very minority residents whom the Times purports to champion."

The SCOTUS Lineup on the Death Penalty

The Supreme Court today announced a unanimous per curiam opinion in Dunn v. Madison.  I'll repeat the Heritage Foundation's summary of the case:

[T]he Court reversed a decision of the Eleventh Circuit in an Antiterrorism and Effective Death Penalty Act (AEDPA) case. AEDPA provides that a state prisoner is entitled to federal habeas relief only if the state trial court's adjudication of the prisoner's claim "was contrary to, or involved an unreasonable application of, clearly established Federal law." In this case, an Alabama trial court sentenced Vernon Madison to death for murdering a police officer. Awaiting execution, Madison suffered several strokes and petitioned for habeas, asserting that he had become incompetent to be executed. Experts testified that although Madison could not remember the "sequence of events from the offense to his arrest to the trial or any of those details," he did understand he was "tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime." The district court denied Madison's petition but the Eleventh Circuit reversed. Today, the Supreme Court reversed, holding that no Supreme Court precedent has "'clearly established' that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."


Ginsburg, joined by Breyer and Sotomayor concurred, writing that while AEDPA precludes consideration of the question in this case, the question of "whether a State may administer the death penalty to a person whose disability leaves him without memory of him commission of a capital offense" "warrant[s] full airing." Breyer also concurred, writing separately to (once again) call into question the "unconscionably long periods of time that prisoners often spend on death row awaiting execution."


You Got to Know When to Fold 'Em

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How do you get judges confirmed in a legislative body where the minority has more power to block action than in nearly any other body in the world?  The WSJ has this editorial.

While you were watching other news, the U.S. Senate this week made major progress confirming judges. Credit goes to Majority Leader Mitch McConnell, who threatened to make Senators work on the weekend, including Friday. The horror.
The editorial concludes: "Maybe the Steve Bannonistas should start giving Mr. McConnell some political credit."

A Lesson from Bowe Bergdahl

There is much to be said about the disgrace of a "sentence" that was handed out today to willing deserter Bowe Bergdahl, but for now I want to make just one point.

Almost all reports state that Bergdahl could have received from a life sentence to no prison time at all, which is what he got.  In a country devoted to the rule of law, that simply cannot be allowed.  There is a place for judicial discretion at sentencing, and the degree of discretion can reasonably be debated.  But allowing for a sentence with no limits whatever  --  from life to zero  --  carries discretion to an absurd extreme.

Sentences should have fixed minimums and maximums.  The size of the range between the two can be great or small, and the overall harshness of the sentence will rightly vary with the seriousness of the crime.  But to have no established boundaries is literally lawless.  We saw the ugly results of such lawlessness this afternoon.  There should be no repeating it, not in military and not in civilian court.

News Scan

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Carjackings Climbing in Chicago:  After declining for seven years, carjackings in Chicago started increasing in 2015, nearly doubling in the next two years.   An in-depth report In today's Chicago Tribune by writer Jeremy Gorner notes that while the focus over the past several years has been on the city's astronomical murder rate, virtually all types of violent crime have been increasing in Chicago with carjackings heading to a 10-year high in 2017.  Although most of the nearly 600 murders in the city have been in the poorer high-crime districts, the 661 carjackings have occurred all over Chicago including the trendy Wicker Park, Bucktown and Logan Square neighborhoods.  Both homicides and carjackings had been lower in 2014, compared to previous years, but both crimes began to increase after the highly-publicised October 2014 police shooting of Laquan McDonald.  While correlation does not prove causation, some officers believe that the Chicago PD backed off aggressive policing after that incident, emboldening criminals.    
Bob Egelko has this story with the above headline in the SF Chron:

California has not executed a prisoner since 2006, but a legal scholar who opposes the death penalty says a recent state ballot measure and U.S. Supreme Court rulings could doom as many as 20 inmates who have run out of appeals.

With the passage last year of Proposition 66, which eliminated regulatory review of the state's new one-drug execution procedures, "I think there's going to be a wave of executions," Erwin Chemerinsky, dean of the UC Berkeley Law School, said Tuesday in a meeting with The Chronicle's editorial board.

That "wave" is long-overdue justice in some truly heinous murder cases, and, yes, that was the idea.

Strangers on a Plane

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They did whatWhere?

News Scan

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Terrorist Kills 8 in NY:  A Muslim from Uzbekistan admitted into the U.S. in 2010 through the 'Diversity Visa Lottery Program,' followed the ISIS playbook to the letter in a carefully planned attack in New York Tuesday that left 8 dead and 11 injured.  Benjamin Mueller, William Rashbaum and Al Baker of the New York Times report that Sayfullo Saipov, 29, drove a rented truck through joggers and bicyclists on a crowded bike path along the Hudson River before crashing into a school bus.  He then exited the truck carrying what appeared to be weapons, yelling "Allahu akbar," the battle cry of Islamic terrorists. He was shot by police but will survive his injuries.  Aaron Katersky, Josh Margolin, and Michele and Brian Ross of ABC News report that Homeland Security officials had interviewed Saipov in 2015 about possible terrorists ties, but he was not detained.  Investigators report finding a handwritten note near the rented truck indicating that Saipov carried out the attack on behalf of ISIS.

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