December 2017 Archives

Retrial Following Partially Hung Jury

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When a jury convicts on one charge and hangs on another, what should the court tell the second jury about the first case?  The California Supreme Court decided yesterday in People v. Hicks, S232218, that it is error to tell the jury specifically about the prior conviction, but the court may instruct the jury upon request:

Sometimes cases are tried in segments. The only question in this segment of the proceedings is whether the prosecution has proved the charge of murder. In deciding this question, you must not let the issue of punishment enter into your deliberations. Nor are you to speculate about whether the defendant may have been, or may be, held criminally responsible for his conduct in some other segment of the proceedings.

Opinion by Justice Chin (6-1), Justice Liu dissenting.
There were few judges in the federal courts more consistently pro-criminal than the late Harry Pregerson.  Nominated for the Ninth Circuit by President Carter, Judge Pregerson was particularly noteworthy for being asked point-blank in his confirmation hearing whether he would vote for his own opinion about the outcome of a case or a contrary result required by the law, answering that he would vote his own opinion, and being confirmed anyway.  Give him points for candor, at least, both in that answer and remaining true to it until this year.

Today, on the very last day of the year, a divided three-judge panel of the Ninth Circuit overturned the conviction in a California capital case, with Judge Pregerson casting the deciding vote.  Judges Reinhardt and Pregerson voted to grant the writ of habeas corpus, reversing District Judge Ronald Lew and effectively reversing the California Supreme Court.  Judge Jacqueline Nguyen dissented.  The four federal judges to review this case, therefore, divided evenly, yet the decision is to overturn the judgment of the state courts.

But wait.  Judge Pregerson died November 25.  Doesn't that matter?  Apparently not.  "Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete," the opinion says.

News Scan

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Why Homicide Dropped In NYC:  While the national homicide rate has climbed 20% in the last two years, murders in New York City have dropped dramatically.  Liberal academics have pounced on this, proclaiming that proactive policing policies including stop and frisk, recently halted in NYC, played no part in making the city's neighborhoods safer.  In her article in the National Review, Manhattan Institute scholar Heather MacDonald compares homicides in New York, which has experienced significant demographic shifts for more than a decade, with Chicago and Baltimore, which have not.  Baltimore has set a new record for murders per 100,000 residents this year while, for the second year since 2003, Chicago has had over 600 murders.  MacDonald contends that the over twenty years of proactive policing in New York reduced crime in many neighborhoods to the point where they became draws for younger more affluent residents, causing "a stunning degree of gentrification over the last 15 years.."    
Lester Black has this article at FiveThirtyEight with the above title:

But here's a word of warning for those looking to dive head-first into these brand-new legal weed markets: The data behind the first four years of legal pot sales, with drops in retail prices and an increase in well-funded cannabis growing operations, shows a market that increasingly favors big businesses with deep pockets. As legal weed keeps expanding, pot prices are likely to continue to decline, making the odds of running a profitable small pot farm even longer.

Washington offers a cautionary tale for would-be pot producers. The state's marijuana market, for which detailed information is available to the public, has faced consistent declines in prices, production consolidated in larger farms and a competitive marketplace that has forced cannabis processors to shell out for sophisticated technology to create brand new ways to get high.
Hmm.  How to keep the pot industry safe for small business?  How about this?  Maintain federal prohibition, repeal the legislative restriction on enforcement efforts, but maintain a "small potatoes" threshold for enforcement as a matter of policy.  Then when a pot operation gets too large, the feds swoop in and forfeit its assets.  Small businesses keep the business, users have nothing to worry about, the price gets a boost to provide at least some discouragement of consumption, and, most importantly, no weed business gets large enough to engage in large-scale marketing efforts.

Murder, Race and Saving Black Lives

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We don't yet know what murder statistics will be for 2017 (they were awful in 2015 and 2016, the largest two year spike in decades).  There is evidence that murders are down in NYC, Chicago, and Washington, DC.  They are up in Baltimore, St. Louis and the densely populated Northern Virginia suburbs.

A friend just sent me the statistics for St. Louis.  They're a wake-up call, and not just because of a third straight annual increase.  They demand attention because the racial breakdown of murder victims veritably shouts at us about what we need to do if we claim to believe that black lives matter.

It's easy to summarize.  We need to suppress the murder rate.

And how do we do that?  This too is easy to summarize, because we spent an entire generation (1991-2014) massively suppressing it.  We did it with more police, more aggressive policing, more overall police-citizen encounters, restraining naive sentencing, and increasing incarceration for violent and drug trafficking offenders.

It's not a matter of what is vaguely called "community trust."  A big majority already trusts the police  --  considerably more than trust the Supreme Court, schools, churches or the medical system.  It's a matter of maintaining the existing trust of everyday citizens  --  and increasing fear of the police in hoodlums and would-be hoodlums.

News Scan

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The False Narrative on Criminal Justice Reform:  In an opinion piece in the Orange County Register columnist Sal Rodriguez joins the chorus of pundits assuring the reading public that California's criminal justice reforms, which have released some 30,000 habitual felons into communities and kept them there with reduced sentences, have not caused any appreciable rise in crime.  He then chastises those in law enforcement who have noted that crime is increasing as "fear mongers."  Among those Rodriguez specifically targets is Michele Hanisee, President of the LA Deputy District Attorneys Association and a seasoned prosecutor.  Ms. Hanisee's response to the accusation and the narrative provides a mini-education about the real world of law enforcement.  

Baltimore Wins Murder Sweepstakes for 2017:  While the murder rate has been trending down in most U.S. cities this year, Baltimore is suffering the highest murder rate in its history.  Kevin Rector of the Baltimore Sun reports that with a couple of days to go in 2017, the city has reached a murder rate per 100,000 of 55.8.  While Baltimore had 353 homicides in 1993, compared to 343 this year, there were 100,000 more people living in the city in 1993.  This has occurred while homicide rates in Chicago and New York have declined this year.           

News Scan

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Inspector General Scolds Obama DOJ:  The Department of Justice Inspector General found systemic flaws throughout the DOJ in handling complaints of sexual harassment over the last five years according to a story by Washington Post reporter Sari Horwitz.  The cases examined by the IGs Office were obtained by WaPo through a Freedom of Information Act request.  Some of the cases involved presidential appointees, FBI special agents in charge, U.S. Attorneys, federal prison wardens and senior level Justice Department employees.  In some cases perpetrators received little or no discipline and later received bonuses and performance awards.  The information indicates that sexual harassment incidents had increased significantly in recent years and that some incidents presented potential criminal activity, but were never referred to the IG for investigation.    

News Scan

Criminal Who Caused 3 Strikes Gets 3rd Strike:  A habitual felon who avoided a murder conviction in 1992 by pleading to robbery was found guilty Wednesday of corporal injury to his girlfriend and three counts of dissuading her from testifying.  Pablo Lopez of the Fresno Bee reports that Douglas Walker was an accomplice in the murder of 18-year-old Kimber Reynolds in front of a popular restaurant in downtown Fresno.  While she was walking, two parolees, Joseph Davis and Douglas Walker, pulled up on a motorcycle and tried to snatch her purse. She fought. Davis pulled out a .357-caliber handgun and shot her in the head. She died two days later. Davis later died in a shootout with police. Walker pled to robbery and was sentenced to nine years in prison, but was released after 4 1/2 years.  It was Kimber's murder that inspired her father, Mike Reynolds, to qualify the "Three Strikes and You're Out" initiative for California's 1994 ballot.  It passed overwhelmingly, setting the stage for over two decades of dropping crime rates.  Walker's most recent release from prison occurred in 2013 when, under Governor Jerry Brown's Realignment law (AB 109), he was classified as a non-violent, non-serious offender and was placed on Post-Release Community Supervision, rather than the more strict supervision of state parole. With his most recent conviction, Walker could be sentenced to 102 years, but he could also receive much less under California's Proposition 57, which gives the state parole board the option to ignore the consecutive sentences provided by Three Strikes.
Larry Blandino of O'Fallon, Missouri has this letter to the editor of the St. Louis Post-Dispatch:

Regarding the editorial "Clemons folds" (Dec. 20):

Now that Reginald Clemons has finally admitted his guilt in the 1991 rape and murder of Julie and Robin Kerry, I think a sincere apology should be forthcoming from the ACLU, Amnesty International, actor Danny Glover and anyone else who claimed the innocence of Clemons. Because of their arrogance, the pro-Clemons advocates prolonged the pain of the surviving family members. How shameful.

It takes strength to admit to one's folly. It takes empathy to issue a sincere apology. I hope the pro-Clemons supporters can swallow their pride and discover these admirable traits very quickly. Perhaps, the old Chain of Rocks Bridge can be viewed not as a bridge too far, but as a bridge that can somehow lead to the start of family and community healing.
See Wednesday's post on this case for the background.

Opioids' Astonishing Toll

If we make it easier to obtain addictive but lethal drugs, more of them will be used.  Legalizing them, or reducing the penalties for trafficking them, will make them easier to obtain.

So is this what we want?

The liberal Washington Post today features an article that makes the answer unavoidable to any but the most dead-end partisan.  Its title is, "Fueled by drug crisis, U.S. life expectancy declines for a second straight year."

American life expectancy at birth declined for the second consecutive year in 2016, fueled by a staggering 21 percent rise in the death rate from drug overdoses, the Centers for Disease Control and Prevention reported Thursday.

The United States has not seen two years of declining life expectancy since 1962 and 1963, when influenza caused an inordinate number of deaths. In 1993, there was a one-year drop during the worst of the AIDS epidemic.

Not for nothing do the American people overwhelmingly oppose legalizing hard drugs.

DIY Alternative Sentencing or Extortion?

Joe Palazzolo and Sarah Nassauer report for the WSJ:

Until recently, a first-time shoplifter caught in any of about 2,000 Wal-Mart stores got a choice: pay hundreds of dollars, complete an education program and all will be forgiven--or don't and potentially face prosecution.

Corrective Education Co. and Turning Point Justice, Utah-based companies that provide the programs, emerged in recent years as alternatives to the often-overtaxed criminal justice system. They spare law-enforcement resources and hold offenders accountable without leaving the scar of a criminal conviction, their supporters say.

But Wal-Mart Stores Inc., one of the biggest clients of Turning Point and Corrective Education, suspended the programs earlier this month as more local officials questioned the legality of asking people for money under threat of criminal sanctions, though it said it found the programs effective at reducing shoplifting and calls to police.

The move followed a ruling from a California court in August finding that Corrective Education's program violates state extortion laws.

Why Trials Are Disappearing

It has often and correctly been noted that trials have all but disappeared from American criminal law.  The reason for this fact is, however, much disputed.

My friends on the pro-defense side say it's because of prosecutorial extortion: Legions of defendants, some innocent and many others with at least arguable defenses, are in effect forced to plead guilty by the threat of "draconian" sentences if they don't take the offered deal and instead insist upon their constitutional right to take their case to a jury.

I think otherwise.  My years as an AUSA tell me that the reason defendants take the deal is that they are ice cold on the evidence and understandably prefer that their behavior not get the full airing a trial would bring.

Often, the best evidence is the surveillance tape.  For example, this one

Government Wins DACA Battle

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Twelve days ago, I noted that "the Government won a preliminary skirmish in the Supreme Court in the battle over the Deferred Action for Childhood Arrivals (DACA) program."  Today the Government won a battle, but the war goes on.

In the case of In re United States, et al., No. 17-801, the Government asked the Supreme Court for relief from an order to add to the administrative record a broad array of vaguely described documents.  Today, the high court held:

Under the specific facts of this case, the District Court should have granted respondents' motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is "committed to agency discretion," 5 U. S. C. §701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction). Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.

In other words, there is no need to compile a mountain of paper if the case can be resolved without it.  The Supreme Court also wants the Court of Appeals to supervise the District Court more carefully.

Flip a Coin for Legislative Control

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Think one vote never makes a difference?  Take a look at the Virginia House of Delegates. Jim Morrison and Fenit Nirappil have this report for the WaPo.

The election for District 94 in the Virginia House was previously thought to have been decided by one vote.  However, one vote for that had previously been thrown out has now been found to be a valid vote for the erstwhile loser, leaving a tie.

If the Republican wins this seat, the House will be 51-49.  If the Democrat wins, it will be 50-50.  By state law, a tie race is decided by lot.

I will bet that more than a few people in this district are wishing they had voted now.

Yet Another Cause Célèbre Really Did It

The tent has finally folded on the Reginald Clemons circus.  As with so many other poster boys for the anti-death-penalty crowd, he is indeed guilty.  Robert Patrick and Joel Currier report for the St. Louis Post-Dispatch:

Reginald Clemons, who was sentenced to death for the 1991 killings of two sisters at the Old Chain of Rocks Bridge before his conviction was overturned in 2015, pleaded guilty to murder and other charges Monday in exchange for multiple sentences of life in prison.

Clemons, 46, pleaded guilty to five counts in all: two counts of second-degree murder, two counts of rape and one count of first-degree robbery.

Clemons admitted that he and three others met Julie Kerry, 20, and Robin Kerry, 19, and their cousin on the closed bridge late on the night of April 4, 1991.

They robbed the cousin, Thomas Cummins, of cash and a watch, Assistant Attorney General Gregory Goodwin said in court. They then raped the Kerry sisters, forced all three through a manhole and onto the substructure of the bridge and pushed the Kerrys off, he said. They forced Cummins to jump from the bridge at gunpoint, Goodwin said, but Cummins survived.
Sentencing Law and Policy has this story of a scandalous sentence that had to be corrected by a higher court.  We shouldn't need that kind of correction, and can't always count on getting it.  When we have sentencing judges who can consider a 12 year-old girl the sexual aggressor ("against" an adult man), you know right there that we cannot allow sentencing judges 100% discretion 100% of the time.

Under the federal Sentencing Reform Act of 1984, judges were required to employ mandatory guideline ranges.  Within those ranges, they had considerable discretion. They could also go outside the ranges if they stated good reason on the record, subject to appellate review.

When Booker came along, the guidelines were rendered "advisory only," and it's been all downhill since  --  there are now more sentences imposed below than within the guideline range, effectively setting us back to the lenience-skewed lottery we had before.

If and when we return to mandatory guidelines with exacting appellate review, we can at least think about moderating (although not ending) statutory mandatory minimums. Until then, judges like the one in this case remind us why sentencing courts can't be trusted  with everything all the time.  

News Scan

CA Criminal on Probation Arrested for Murder:  A violent criminal required by California's AB109 to be released from jail early has been arrested for beating a 21-year-old man to death with a baseball bat.  Deke Farrow of the Modesto Bee reports that habitual criminal Shaun Santos will face robbery and murder charges for the December 4th murder of Cameron Tracy.  Tracy had been at a Turlock skate park with his girlfriend at about 6:00 pm when a group of masked assailants jumped out of a van and beat him unconscious.  Santos was arrested the next day and is suspected of being the attacker who used a metal baseball bat on the victim.  He had prior convictions for assault with a deadly weapon, theft and assault and battery with serious injuries when he was given early release from jail after violating his Post Release Community Supervision (probation).   Santos is also a suspect in the three other robberies and assaults in the same park which have occurred since late November.  Santos' mother told reporters that California's criminal justice system failed to protect the public from her son. 
Some years back, I asked a person who had been connected with the Bush Administration regarding judicial nominations why the appointments to the Ninth Circuit had been so spotty.  While some appointments had been excellent, there were also disappointments.  The "No More Souters" mantra that prevailed in Supreme Court nominations did not extend to the Ninth.  The answer genuinely shocked me, and by this point I was jaded enough that that was a high threshold.  The reply was to the effect that they considered the Ninth so screwed up as to be hopeless, so it really wasn't a priority.  One-fifth of the American population lives in the Ninth Circuit, and they just didn't care.

The Trump Administration and the Senate leadership have been praised in some quarters and condemned in others for getting judicial nominations and confirmations through quickly, relative to past administrations, but that evidently does not apply to the Ninth.  There were four vacancies as of yesterday, all existing before President Trump's inauguration.  (A fifth was added today.)  There are two more coming in 2018.

How many nominations do we have?  One.  How many confirmations?  Zero.

Many of the vacancies are from the retirements of persons of sense, so these seats must be filled with other persons of sense just to maintain the status quo.  Filling Harry Pregerson's seat will almost certainly be an improvement because it is pritnear impossible to pick anyone worse, but how much of an improvement remains to be seen.  The possibility, however slim, of losing the Senate in 2018 makes the nomination and confirmation of quality judges a priority, but we are not seeing any signs it is recognized as such.

News Scan

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Sexual Harassment:  The jury will be out for a while on the real impact of the flood of claims of sexual harassment that have been made in recent months.  The debate about what even constitutes sexual harassment ranges from someone making a comment, telling an off-color joke, asking someone out for a drink, to a person using the power of a position to force a subordinate to choose between performing a sex act or losing their job.  The credibility of the accuser has too often been washed through a political filter, rather than evaluated by any objective standard.  This is true for the accuser of the manager of a Burger King, a Hollywood big shot, and those holding or trying to win political office.  While there will always be exceptions, the most credible accusers appear to be those who have nothing to gain by coming forward and often something to lose.  Also, because most behaviors reflect a pattern rather than a one-time event, the person abusing their authority to take advantage of young or vulnerable subordinates often has a reputation for this behavior.  Last weekend the Washington Post published one young woman's compelling story about her experience years earlier with a member of Congress who later resigned because of his reputation.

USCA9 Judge Kozinski Resigns

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Ashby Jones reports for the WSJ:

Alex Kozinski, a prominent federal appellate judge, resigned Monday following sexual-harassment allegations from former law clerks and others.

More than a dozen female clerks, lawyers and others ​told the Washington Post in recent weeks that Judge Kozinski, a senior judge on the Ninth U.S. Court of Appeals in Pasadena, Calif., had made inappropriate, sexual comments at work or had engaged in inappropriate sexual touching.

SF SPCA Robocop Deactivated

Jim Carlton reports for the WSJ:

SAN FRANCISCO--Last month, the San Francisco Society for the Prevention of Cruelty to Animals deployed a 400-pound robot to help combat a sharp rise in car break-ins and other crime at one of its animal shelter facilities here.

On Thursday, the Knightscope K5 was benched amid complaints that it was being used to harass the neighborhood's sizable homeless population.

The shelter's officials said in local news reports that break-ins and discarded drug needles had decreased at the Mission District campus after the robot was deployed. The white, Weeble-shaped robot rolled along snapping photos that it relayed to human guards.

"It's scaring a lot of homeless, because they think it's taking pictures of them," said Moon Tomahawk, an unemployed 38-year-old man who frequents the homeless encampments nearby.

News Scan

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Executions Increased in 2017:  Even with a recent stay of execution granted to Texas murderer Juan Castillo, executions in the U.S. increased in 2017.  Associated Press writer Michael Graczyk reports that after steadily declining for nearly two decades, 23 of the nation's worst murderers were put to death this year compared to 20 in 2016.  This occurred as many states struggle to acquire preferred execution drugs due to what CJLF Legal Director Kent Scheidegger calls an "embargo" pressed on drug manufactures by anti-death penalty groups.  He also attributed the drop in executions since 1999 to the steady drop in homicides over the next 17 years and more selectivity by prosecutors.  But with the uptick in the homicide rate in 2016 and probably this year as well, and recent court decisions rejecting challenges to state use of alternative lethal injection drugs, it is not surprising to see an increase in executions.    

Sanctuary City Cases Appealed

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This morning the Government appealed the final injunctions against the enforcement of Section 9(a) of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," 82 Fed. Reg. 8799 (Jan. 25, 2017).  That subsection directs the Attorney General and the Secretary of Homeland Security to withhold Federal grants "to the extent consistent with law" from "jurisdictions that willfully refuse to comply with 8 U.S.C. 1373."

The Government had previously appealed the grant of a preliminary injunction, but that appeal is mooted by the grant of the permanent injunction.

The cases are:
City and County of San Francisco v. Donald Trump et al., No. 17-17478
County of Santa Clara v. Donald Trump et al., No. 17-17480.

News Scan

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DNA Solves 1989 Murder:  A 50-year-old Washington man has been arrested for the 1989 rape and murder of a coed.  Travis Fedschun of Fox News reports that the Thanksgiving Day rape and murder of 18-year-old Mandy Slavik went unsolved until detectives matched the DNA of a neighbor, Timothy Bass, with DNA found on the Slavik's body.  While Bass was not a suspect during the initial investigation, police later suspected that he was involved.  That suspicion was confirmed when a co-worker at local bakery gave detectives a drinking cup Bass had used which provided a DNA sample.  Mandy Slavik left her parent's house to go jogging with her dog just before 2:00 pm on November 24, 1989, in the small rural town of Acme.  Hours later the dog returned alone.  Mandy's nude body was later found along a nearby river.  Bass has been charged with first-degree murder, kidnapping and rape.

Suspects Claim Bias in Stash-House Stings:  A panel of federal judges is holding hearings on claims that stings to lure drug thieves to rob fictitious stash houses, which have primarily targeted black neighborhoods in Chicago, are racially biased.  Associated Press writer Michael Tarm reports that the claim was made by lawyers representing 43 defendants charged in 12 stash house stings carried out by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.  The hearings will feature a report by Columbia Law School Professor Jeffery Fagan, which found that roughly 80% of the stings were carried out in predominantly black neighborhoods, which he says proves a "pattern of discrimination."  The government's lawyers argue that stings target only criminals with violent priors who unequivocally wanted in on the robberies.  They note that the districts targeted for stings are those with the most drug trafficking and that race plays no part.  Max Schanzenbach, a professor at Northwestern who examined Fagan's data, concluded that "a straightforward comparison of the stash house defendants to reasonable comparison groups--those arrested for similar crimes, in particular a home invasion involving a firearm--finds no statistical evidence of discrimination."
Jonathan Adler ponders that question from the Volokh Conspiracy's new perch at

There has been rampant speculation over whether Justice Anthony Kennedy, the Supreme Court's swing justice, will retire next spring. Pepperdine's Derek Muller speculates that the Jones victory may have increased the odds. As Muller notes, if Democrats take the Senate, they are extremely unlikely to allow President Trump to fill a vacant Supreme Court seat. Ed Whelan concurs. This could bother Justice Kennedy. Whether or not Justice Kennedy likes the idea of President Trump picking his successor, he may like the idea of his seat remaining vacant for an extended period of time even less. This would mean the time is now.

I am also not sure Justice Kennedy would be particularly troubled by having the Trump Administration select his successor. Although Justice Kennedy is not as conservative as some of Trump's potential picks, I suspect he has been quite impressed by the overall caliber and qualifications of the President's appellate judicial nominations, including that of Neil Gorsuch, who worked for Kennedy on the Court. (District court nominations are another matter, but these are largely a product of negotiation and compromise with local Senators, who often elevate political or other considerations ahead of qualifications.) Justice Kennedy is also no doubt aware that several of his former clerks, including Judges Raymond Kethledge (Sixth Circuit) and Brett Kavanaugh (D.C. Circuit) are on the President's Supreme Court short-list.

Yes, Carjacking Is a Crime of Violence

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Today, the Ninth Circuit decided United States v. Gutierrez, No. 16-35582:

The sole question presented by this appeal is whether the federal offense of carjacking is a "crime of violence" under 18 U.S.C. § 924(c). We hold that it is.
Odd that the question can be asked seriously.  All the circuits to consider the question have decided it the same way.  See pages 5-6 for citations.

The same panel decided in United States v. Werle, No. 16-30181 that "a Washington state conviction for felony harassment constitutes a crime of violence under the Federal Sentencing Guidelines."

Dead People Commenting

Turns out that dead people not only vote, they also comment on proposed federal regulations.  James V. Grimaldi and Paul Overberg report for the WSJ:

A comment posted on the Federal Communications Commission's public docket endorses a Trump-administration plan to repeal a "net neutrality" policy requiring internet providers to treat all web traffic the same.

Calling the old Obama-era policy an "exploitation of the open Internet," the comment was posted on June 2 by Donna Duthie of Lake Bluff, Ill.

It's a fake. Ms. Duthie died 12 years ago.
I have known that comment spam was a problem in rulemaking procedure since the California Department of Corrections and Rehabilitation tried to promulgate a lethal injection protocol and was deluged with tens of thousand of repetitive and usually irrelevant comments.*  I was not aware of the extent of fakery, though, until this excellent piece of investigative journalism.

It is a federal felony to knowingly make false, fictitious or fraudulent statements to a U.S. agency.
*      *      *
In a random sample of 2,757 people whose emails were used to post those 818,000 comments [on the "net neutrality" rule], 72% said they had nothing to do with them, according to a survey the Journal conducted with research firm Mercury Analytics.
Wow.  72%.

News Scan

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Homeless Sparked Fire in Bel Air:  Los Angeles investigators have found that the source of the fire that destroyed six homes and damaged a dozen others in the exclusive Bel Air neighborhood was a nearby homeless encampment.   Gale Holland, Laura J. Nelson and David Zahniser of the Los Angeles Times report that the encampment was in a canyon a few hundred feet from the 405 freeway, which was shut down due to the fire during rush hour last Wednesday.  There are an estimated 58,000 homeless living in the Los Angeles area, with many thousands living the West Los Angeles hills, home to some of the most affluent neighborhoods in the country.  "We knew it was only going to be a matter of time before something horrible happened," said one Bel Air resident.  The homeless population Los Angeles has increased dramatically over the past several years. 

Meet Some Prop 57 Early Release Inmates

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."
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

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

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

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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