December 2017 Archives

Meet Some Prop 57 Early Release Inmates

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Michele Hanisee has this post for the Los Angeles Association of Deputy District Attorneys, with the above title and the subtitle "(Hopefully not on a street corner)."  After describing four cases, she notes:

Governor Brown promised the public that only non-violent offenders would be released under Prop 57.  A bank robber/hostage taker, a gun-toting felon who threatened to kill his mother, a knife-wielding felon who threatened to kill his girlfriend, and a dog killer are probably not who the public expected back into their communities.   But the public need not fret.  After all, the Board of Parole has determined that none of them pose "an unreasonable risk of violence to the community."

Is Mueller's Investigation Politically Tainted?

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Special Counsels, and Independent Counsels before them, were created because the Nixon era showed us that the public cannot attain the high degree of confidence in investigations of powerful officials, particularly the President, that is needed to entrust those investigations to the Justice Department.  DOJ's highest officers are, of course, themselves politically appointed, and thus accountable, in a potentially unwholesome way, to the man in the Oval Office.

The question has now been raised whether this tradeoff  --  an increase in independence bought at the price of a decrease in political accountability  --  has its own problems.  The answer is:  Sure it does.  Tradeoffs always do.  This is why they're called tradeoffs rather than windfalls.

The Special Counsel tradeoff is an important question that has not received sufficient discussion, cf. Justice Scalia's dissent in Morrison v. Olson. But another question has surfaced as well, one we should have expected:  Whether, in avoiding a political slant in one direction, the appointment of a Special Counsel has a natural momentum to create a slant in the other.  That question is usefully explored in this morning's USA Today op-ed.

Preview:  The op-ed's answer is "yes."  I agree, but would suggest a remedy different from the one proposed.

News Scan

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Murderer Challenges Death Sentence:  An Ohio man, who masterminded the robbery and murder of a friend, is arguing in the state Supreme Court that he should receive the same sentence as his partner in the crime, rather than a death sentence.  Andrew Welsh-Huggins of the Associated Press reports that attorneys for 22-year-old Austin Meyers say he should not be facing execution while his accomplice, who delivered the fatal knife wounds, got life without the possibility of parole (LWOP).  His attorneys also claim that his youth (19) at the time of the murder should have weighed against a death sentence.  According to prosecutors, there was overwhelming evidence that Meyers planned the murder, tied a garrote around his friend Justin Back's neck, and held him down while co-defendant Tim Mosley finished him off with a knife.  As far as Meyer's age is concerned, the prosecutor noted that he had been an adult for a year when the murder was committed.

Fentanyl For Executions?  The continuing shortage of preferred drugs for the execution of murderers, caused by anti-death penalty advocates, has forced states to look for alternatives.  William Wan and Mark Berman of the Washington Post report that two states, Nevada and Nebraska, are looking at the powerful painkiller fentanyl as an alternative for lethal injections.  While death penalty opponents are claiming that the drug is untested and might cause pain, CJLF Legal Director Kent Scheidegger noted, "If death penalty opponents were really concerned about inmates' pain, they would help reopen the supply."  According to the U.S. Center for Disease Control and Prevention, at least 32 thousand people are overdosing on the drug every year.  It is doubtful that so many addicts would be shooting up fentanyl if it caused pain.  Medical experts report that fentanyl is 50 times more powerful than heroin and 100 times more potent than morphine.

No New Supreme Court Cases

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The U.S. Supreme Court held its weekly conference Friday, announced a short list of cases taken up the same day, and issued the long, regular orders list today.  As is the usual pattern when a same-day list of grants is released, the Monday list is all denials.

There was no action on the Arizona capital case of Hidalgo v. Arizona, No. 17-251.  Amy Howe has this take on the case:

The justices did not act on the case of Abel Hidalgo, the Arizona death-row inmate (represented by Neal Katyal, the former acting U.S. solicitor general) who has asked the Supreme Court to weigh in on the constitutionality of the death penalty. After considering Hidalgo's cert petition at their December 1 conference, the justices asked the Arizona courts to send them the record in the case - which can be a sign either that at least one justice is looking at the case more closely or (especially in death-penalty cases) that someone is writing an opinion in the case. The most likely scenario seems to be that Justice Stephen Breyer, who in the past few years has repeatedly suggested that the Supreme Court should tackle the question now presented by Hidalgo's case, is writing an opinion regarding the denial of review, but Hidalgo and we will almost certainly have to wait until the new year for an answer.
From the Arizona Supreme Court's opinion in the case:

In late December 2000, Hidalgo agreed to kill Michael Cordova in exchange for $1,000 from a gang member. He accepted the offer without knowing Cordova or why the gang wanted him murdered. One morning in January 2001, Hidalgo waited in his car near Cordova's auto-body shop. When Cordova began unlocking the shop, Hidalgo approached and feigned interest in some repair work. They were joined by Jose Rojas, who occasionally did upholstery work for Cordova and came that morning to retrieve some equipment. After the three men entered the shop, Hidalgo shot Rojas in the back of the head. Hidalgo then shot Cordova in the forehead. Even though the shots were fatal, Hidalgo shot each victim five more times to ensure he died.

Government Wins DACA Skirmish

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The Government won a preliminary skirmish in the Supreme Court in the battle over the Deferred Action for Childhood Arrivals (DACA) program.  In the case of In re United States, et al., No. 17A570, the high court ordered:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's September 22, 2017, October 17, 2017,and November 20, 2017 orders, to the extent they require discovery and addition to the administrative record filed by the Government, are stayed pending disposition of the Government's petition for a writ of mandamus or in the alternative a writ of certiorari.

Responses to the Government's petition for a writ of mandamus or in the alternative a writ of certiorari must be filed by Wednesday, December 13, 2017 at 4:00 p.m.
Justice Breyer dissents in an opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

The main case is 17-801.

SCOTUS Takes Up New Criminal Cases

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Today the U.S. Supreme Court issued a short orders list taking up for full merits briefing and argument     criminal cases:

17-155 Hughes v. United States:  Sentence reduction due to retroactive amendment to the Sentencing Guidelines

17-312 United States v. Sanchez-Gomez:  "Whether the court of appeals erred in asserting authority to review respondents' interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents' individual claims were moot."

17-5716 Koons v. United States:  Another case on sentence reduction and retroactive amendments.

No blockbusters.

Look for a long list of denials Monday.
Sam Bray at the Volokh Conspiracy has this post on developments in this area.  He links to this page on the House Subcommittee on the Courts, Intellectual Property, and the Internet with video of a hearing held on November 30 and PDF versions of testimony by Bray, Amanda Frost, Michael Morley, and Hans von Spakovsky.  Judiciary Committee Goodlatte's remarks are here.

News Scan

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Homeless Camps Called a Fire Hazard:  With wildfires sweeping across southern California, residents of San Clemente are asking local authorities to clear out homeless encampments because they pose a fire hazard.  Fred Swegles of the Orange County Register reports that the calls for clearing out the encampments came after a November 25 fire burned seven acres in a rural area frequented by vagrants near homes and a high school. There has been a significant increase in the homeless population in California over the past five years, with an estimated 55,000 living on the streets in Los Angeles and over 9,000 in San Diego.  A large percentage of homeless living in rural areas lite fires for cooking and heat and many smoke cigarettes. The homeless population also includes drug users including those who smoke crack cocaine and marijuana.   
The Sixth Amendment guarantees "an impartial jury of the State and district whereof the crime shall have been committed."  It doesn't say anything about them being awake.  Nicole Hong reports for the WSJ:

The right to a jury trial is a pillar of America's justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake.

*      *      *

"From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring," says John Gleeson, who was a federal judge in Brooklyn for 22 years. "We're the dullest people in the world, for Christ's sake."

Cutting the First Amendment Cake

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CJLF takes no position on the Masterpiece Cakeshop case that was argued Wednesday in the Supreme Court.  I generally avoid taking positions outside of our core mission, and I especially avoid the hot-button social issues.  Even so, it is an interesting case, and I have been following it.

Stephen Wermiel of American University has this interesting post at SCOTUSblog on the amicus briefs in the case.  As a frequent "friend of the court" there myself, I have a particular interest in the subject.

The Supreme Court is not alone in being divided, however. The closely watched case has also split the community of First Amendment lawyers who advocate free-speech rights in a broad range of lawsuits, friend-of-the-court briefs, scholarly articles and panel discussions.

Another School Shooting

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There has been a shooting at Aztec High School in northwestern New Mexico.  Moriah Balingit reports for the WaPo:

The San Juan County Sheriff's Office said the person believed to have opened fire at Aztec High, a school of about 1,000 students near the Colorado border, is also dead. No one else was injured, the sheriff's office said. The Navajo Nation Office of the President and Vice President, which oversees territory not far from the school, had previously released a statement saying 15 people were injured.

The FBI and New Mexico state police were investigating.

News Scan

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Maryland AG Wants Lawsuit Dismissed:  The Maryland Attorney General is asking the 4th Circuit Court of Appeals to dismiss the malicious prosecution lawsuit against Baltimore City State's Attorney Marilyn Mosby brought by five Baltimore police officers she had charged with contributing to the death of small-time criminal Freddy Gray in 2015.  The Associated Press reports that Ms. Mosby's public announcement that she would prosecute the six officers involved in the arrest and transport of Gray in a police van was greeted by a cheering crowd. Gray suffered fatal spinal injuries during the transport.  While all of six of the officers were acquitted, the five suing Mosby argue that she did not have sufficient evidence to bring charges against them and withheld exculpatory evidence.  After the officers were acquitted of the criminal charges, the Obama Administration's Justice Department decided not to bring federal civil rights charges against them.     
A study by the San Francisco-based anti-incarceration group Center on Juvenile and Criminal Justice has discovered that for most of California, sentencing reforms (read anti-sentencing reforms) adopted in the state since 2011 have not caused an increase in crime.  Makeda Easter of the Los Angeles Times uncritically reports the group's conclusion that outside of Los Angeles, the state has enjoyed lower crime after the state adopted new laws releasing criminals and reducing penalties.  These news laws include;  AB109, which released roughly 30,000 habitual felons into communities and prohibited those who commit most new crimes from going to prison; Proposition 47, which reclassified theft and drug felonies of less than $950 into misdemeanors; and Proposition 57, which removed mandatory sentence increases for repeat felons, including those with violent priors, and gave thousands of inmates the opportunity for early release.  According to the study's author "the reforms are probably not the reason crime has changed for better or worse for individual cities." 

Update:  This study was the subject on Thursday's John & Ken Show on KFI AM Los Angeles.  Here's the podcast.

News Scan

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Wisconsin Seeks Drug Testing For Food Stamps:  In a move guaranteed to spark multiple lawsuits, Wisconsin Governor Scott Walker is moving ahead with a rule change requiring able-bodied applicants for food stamps to first submit to a drug test.  Scott Bauer of the Associated Press reports that the state legislature had approved the change two years ago, but it was not implemented due to a 2014 federal court ruling blocking a similar requirement in Florida.  Under the Governor's plan, those who failed the drug test would be eligible for a state-funded drug rehab program.  Last year, Walker and 10 other governors asked the Obama Administration to permission to drug test food stamp recipients.   

Client Uber Alles a/k/a Women Have It Coming

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The criminal defense bar continues to amaze.

Readers will recall Brock Turner's submission at sentencing  --  the letter that called his defilement of a defenseless (because drunk) woman "20 minutes of action." 

Not content with the scandalously low sentence he received after this "argument," he has appealed his conviction:

In his appeal, Turner argued that contrary to what Deputy District Attorney Alaleh Kianerci repeatedly told jurors, the sexual assault happened near a three-sided trash bin, but not behind it, according to the Mercury News. Saying the assault happened behind the dumpster is "prejudicial" and implied that Turner was trying to hide what he was doing.

Not mentioned in counsel's appeal is that little Brock attempted to run away when spotted.

In response to the anticipated question of "What do you expect the defense to do?" my answer is, "Develop a sense of decency."  But perhaps the more realistic answer, given the Almighty Fee, is, "This is the attitude we should expect from the same bunch who write non-disclosure agreements to silence the women their clients have raped."

Anyone still wondering why lawyers have the reputation they do?

"Travel Ban 3.0" Injunction Stayed

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From the U.S. Supreme Court in Trump v. Hawaii, No. 17A550:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's October 20, 2017 order granting a preliminary injunction is stayed pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.

Justice Ginsburg and Justice Sotomayor would deny the application.
Essentially the same order was entered in the Fourth Circuit case, 17A560.

Note that, unlike "Travel Ban 2.0," the stay is not selective.  The preliminary injunctions are stayed in their entirety.

Petty Theft Auto

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Stealing a person's means of transportation has long been considered a particularly egregious form of theft.  In 1789, for example, the Virginia Legislature made horse theft a "felony without benefit of clergy," i.e., a capital offense.

In modern criminal law, the felony of grand theft is typically distinguished from the misdemeanor of petty theft by the value of the property, but in many states theft of an automobile is a felony regardless of value.  Hence the term "grand theft auto."

California has been steadily watering down the punishment of auto theft for six years now.  The realignment bill of 2011 assured auto thieves they would never go to state prison for the crime.  Proposition 47 made all thefts of property worth less than $950 a misdemeanor, regardless of the nature of the property.

What kind of clunker is worth less than $950?  Precisely the kind of car owned by people who can barely afford a car at all, do not carry comprehensive insurance, and are devastated by the loss.

What about people already in prison for stealing clunkers?

News Scan

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Illegal Gets Prison For Assaulting 2 Women:  Matt Stevens of the New York Times reports that an illegal immigrant who had been deported 20 times has been sentenced to 35 years for attacking two Portland women.  Last Summer Fox News reported that on July 24th Sergio Jose Martinez entered a 65-year-old woman's home through an open window, used scarves and socks to blindfold her, then tied her up, gagged her and sexually assaulted her -- slamming her head into the wood floor.  He then stole her credit cards, cellphone and car.  Hours later, armed with a knife, he attacked another woman in a parking garage who managed to fight him off until police arrived.  The crimes occurred about two weeks after Martinez was released from a Portland jail although ICE had placed a detainer order on him last December.  It is illegal for cities in Oregon to use resources to help ICE enforce immigration law and Portland declared itself a sanctuary city last March.  Tough luck for the two victims.     
Max Greenwood reports for The Hill:

A federal warrant has been issued for the arrest of a Mexican immigrant acquitted Thursday evening of murder charges in the 2015 killing of Kate Steinle.

Steinle's death has been taken up by opponents of so-called sanctuary cities. They argue that stricter immigration enforcement would have kept Jose Ines Garcia Zarate, who is residing in the U.S. illegally and was deported five separate times before the 2015 shooting, off the streets.

The arrest warrant unsealed in the Western District of Texas by the Justice Department on Friday accuses Zarate of violating his supervised release.

Given his record, once he is safely in federal custody he can surely be charged with federal weapons violations which can put him away for a long time.

Court Packing

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Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit has this op-ed in the NYT:

A prominent conservative law professor, Steven Calabresi, and one of his former students recently published a proposal to expand the federal judiciary by creating hundreds of new judgeships. A founder and chairman of the Federalist Society (of which I have been a member since 1984), Professor Calabresi promoted his "judgeship bill" as a way of "undoing" President Barack Obama's judicial legacy. But there is nothing conservative -- or otherwise meritorious -- about this proposal.
This article at the WSJ discusses the tax advantages of giving appreciated stock directly to your favorite charity, avoiding capital gains tax and getting a charitable deduction for the full appreciated value.

This seems to be a particularly good year for this strategy, given the gains in the stock market and the uncertain future of the tax code.

And if your favorite charity just happens to be the Criminal Justice Legal Foundation, our contact info is here.

News Scan

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San Francisco Justice:  The jury in the trial of Jose Ines Garcia Zarate for the July 1, 2015 murder of Kate Steinle returned a verdict of not guilty on all charges but illegal possession of a firearm yesterday.   CBS San Francisco reports that Kate's father, who was walking with her on a pier when she was shot and killed, told reporters "There is no other way you can coin it.  Justice was rendered but it was not served."  Zarate, an habitual felon who has been deported five times, was living in San Francisco specifically because it is a sanctuary city.  At the trial, defense attorneys argued that Zarate's shooting of Steinle with a stolen gun was a tragic accident.  The jury bought it.  Its been an open secret for at least the last 40 years that the worst news a prosecutor anywhere in California could get is that a murder defendant has won a change of venue to San Francisco.  There are few places in the country where the public is as reliably pro-defendant than in the city by the bay.   In just about any other place in the United States, Zarate would most likely have been been convicted of at least manslaughter.  In San Francisco Zarate is a member of a protected class.  Kate Steinle was not.   

Manhattan Institute scholar Heather Mac Donald has this excellent piece in the City Journal on the Kate Steinle murder and the verdict in this case.

More Murders in Baltimore:  The number of murder's in Baltimore hit 319 Thursday, beating the 318 total for all of 2016 and approaching the record of 344 set in 2015.  Kevin Rector of the Baltimore Sun reports that a 21-year-old man shot dead in an East Baltimore neighborhood Thursday morning occurred just hours after police discovered a man's body in a burning vacant house in West Baltimore.  Calling the violence "out of control"  Mayor Catherine Pugh has promised to add 3,000 officers to the city's police force.  Unfortunately her agreement last April to a federal consent decree restricting pro-active policing in the city means that any new officers will be joining a hobbled department.  A 40-year old woman who heard the gunshots and saw the victim lying in the street Thursday morning told the Sun reporter, "we at a bad spot in this city."   

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