January 2018 Archives

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7th Circuit Overturns Death Sentence:   In a ruling announced on January 11, a unanimous panel of the 7th Circuit U.S. Court of Appeals overturned the death sentence of an Indiana man convicted of the 2004 murders of a young mother and her 4-year-old daughter.  The Associated Press reports that, unless overturned, the ruling will require a new sentencing hearing for Frederick Baer, who pled guilty to the murders, but claimed that he was mentally ill. On February 24, 2004, Baer saw 26-year-old Cory Gardener moving some boxes on her front porch.  Gardner was alone with her daughter, Jenna, while her husband was away looking for work.  Baer asked the woman if he could borrow a phone to call his boss.  When she went inside to get a phone, Baer followed and sexually assaulted her.  He then slit her throat.  Jenna saw the attack on her mother and ran to another room, where Baer slit the child's throat, stole her mother's purse, and left.  The 7th Circuit held that Baer's death sentence was unconstitutional because the jury instructions did not mention that Baer may have been under the influence of methamphetamine at the time of the murders.  The court also found misconduct by the prosecutor and ineffective assistance of counsel for failing to object.  The state Attorney General is asking for en banc reconsideration of the panel's ruling.
Few politicians have been as disappointing, following a promising start, as now-departed New Jersey Governor Chris Christie.  Now we learn that on his way out the door, Gov. Christie signed a particularly bone-headed piece of legislation.  Corinne Ramey reports for the WSJ:

Changes to criminal-justice laws in New Jersey now require an analysis of their impact on racial and ethnic minorities, making the state among only a handful in the nation to do so.

A bill mandating the analyses, which outgoing Republican Gov. Chris Christie signed Monday, requires the state's Office of Legislative Services to prepare so-called racial-impact statements for policy changes that affect pretrial detention, sentencing and parole.

To justify such legislation, the soft-on-crime crowd trotted out its favorite warhorse, the Fallacy of the Irrelevant Denominator.

New Jersey has the largest disparity between white and black incarceration rates in the country, according to the Sentencing Project, a nonprofit that advocates reducing the prison population.

The state's prison population is 61% black, 22% white and 16% Hispanic, data show. The state's general population is 14% black, 69% white and 18% Hispanic, according to census data.

What is the relevance of the general population figures?  Most of the general population, across all racial and ethnic groups, consists of law-abiding people.  Prison is for felons, not law-abiding people.  The relevant first-order comparison would be prison population versus felons.  If the ethnic distribution of prisoners is out of line with the distribution of people committing the kinds of crimes for which prison sentences are regularly imposed, that would at least raise a suspicion that something might be amiss and warrant further investigation.  Comparing prison population with general population, though, indicates absolutely nothing.

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More on Sexual Harassment:  With the recent launch of the "Me Too" movement, celebrities, actors and feminists are supposedly giving voice to millions of women victimized by a patriarchy which exploits them.  A compelling City Journal piece by Heather MacDonald questions this narrative, suggesting that the dramatic generational shift in cultural norms since the 1960s has created this problem.  "Feminists cannot acknowledge the divide between men and women when it comes to sex and sensibility. Doing so would violate what Steven Pinker calls the blank slate doctrine, a foundation stone of modern liberalism. One of that doctrine's core tenets is that 'differences between men and women have nothing to do with biology but are socially constructed in their entirety,' "  MacDonald suggests that today's cultural expectations regarding interactions between men and women, which are entirely the product of the women's liberation movement, have actually put women at a distinct disadvantage.  

Are Property Crimes Really Declining in CA?  Beginning in 2011, California has adopted three major sentencing reforms that liberal academics assured us would not increase crime.  Governor Brown's Realignment law, Proposition 47 and Proposition 57 severely reduced the consequences for all but the most violent crimes, substituting rehabilitation programs for lengthy incarceration, no matter how many times a criminal re-offends.  But after roughly two decades of declining crime, violent crime  increased in three of the last five years while property crime increased after Realignment became law, then began dropping after the 2014 adoption of Proposition 47, which converted the theft of property valued at less than $950 from a felony to a misdemeanor, no matter how many times a thief steals.  Are property crimes actually declining or is something else in play.   Michelle Hanisee, President of the Association of Los Angeles Deputy District Attorneys explains why arrests for property crimes have gone down.         

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9th Circuit Overturns Death Sentence:  A unanimous panel of the 9th Circuit U.S. Court of Appeals overturned the death sentence of a brutal triple-murderer in Arizona.  Philip Athey of Cronkite News reports that in 2013, the same panel had upheld Robert Poyson's sentence, but that subsequent rulings by SCOTUS and Ninth Circuit in other cases required that more weight should have been given to the mitigating circumstances at his sentencing hearing than Arizona courts allowed.  Poyson was convicted on strong evidence of the murders of Leta Kagen, her 15-year-old son Robert, and friend Roland Wear, after Kagen let Poyson, who was homeless, stay with them.  The jury found that Poyson murdered Kagen with a gunshot to the head while she slept, reloaded and shot Wear, hitting him in the jaw and finishing him off by hitting him repeatedly over the head with a cinder block.  This all, after he stabbed and beat Kagen's 15-year-old son to death.  Barring a reversal on appeal, Poyson's drug and alcohol abuse and personality disorder(s) will be given more appropriate attention at a new sentencing hearing.

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Death Sentence for Missouri Child Killer:  A Missouri Judge has sentenced Craig Wood, 49, to death for the 2014 kidnap, rape, and murder of a 10-year-old girl.  Fox News reports that Wood snatched fourth grader Hailey Owens off a street in broad daylight in front of witnesses, who took down his license number.  He took the girl to his house, raped her, shot her in the head, and left her body in the basement.  Jurors were unanimous in finding Wood guilty of capital murder, but could not agree on whether he should receive LWOP or a death sentence.  Because of this, Missouri law places the sentencing decision with the judge.  Wood's attorneys told reporters they will argue on direct appeal that his trial was unconstitutional.

Top MS-13 Leader Arrested:  The DEA announced Thursday that its agents had  arrested 17 top-ranking members of the violent MS-13 drug gang. Larry Celona, Kevin Sheehan, and Danika Fears of the New York Post report that a multi-agency task force put together last May led to the leaders of the violent gang's activities in at least 8 Long Island towns.  Included among those arrested is the group's Northeast leader, who was not named.  The arrestees have been indicted on charges, including drug trafficking, murder, and conspiracy, and face sentences up to 25 years to life in federal prison if convicted. The investigation has also led to affiliated gangs in New York, New Jersey, Maryland, Virginia, and Texas.
Jason Campbell reports for the Manteca Bulletin:

Proposition 47 was supposed to be a crucial component in relieving the overpopulation of California's jails and prisons and a vehicle for saving millions in costs associated with incarcerating nonviolent, non-serious criminals.

But opponents of the ballot initiative have said it has led to a sharp rise in the number of property crimes throughout the state, and tied the hands of the law enforcement community in providing a deterrent against the sort of quality-of-life crimes that impact everyday citizens.

And it doesn't look like the law is going to change anytime soon.

Earlier this week the California Assembly Committee on Public Safety failed to pass a bill proposed by Elk Grove Democrat Jim Cooper that would have addressed many of the concerns that have arisen since the implementation of Proposition 47.
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Manteca City Councilman Gary Singh said that he sees the impact of Proposition 47 not just on the City of Manteca as a whole, but in his business on a nearly daily basis. As the owner of a liquor store not far from Highway 99, Singh said that while people used to come in and try and hide what it was that they were stealing, they do so now in the open knowing that even if they get caught by the police not much is going to come their way in terms of repercussions.

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MS-13 Member Admits Killing Girl:  An 18-year-old female member of the notorious MS-13 street gang pleaded guilty on Monday to the brutal stabbing murder of a 15-year-old girl.  Travis Fedschun of Fox News reports that Venus Romero Iraheta, who does not speak English, admitted through an interpreter that she and other gang members abducted Damaris Alexandra Reyes-Rivas from her Maryland home in January 2017, marched her into a snowy Virginia field without shoes or a shirt, then stabbed her 19 times in the abdomen, chest, and neck.  Iraheta told police that the murder was revenge for the victim's relationship with her boyfriend.  She will be sentenced for first-degree murder, abduction, and gang membership.  She would have been eligible for the death penalty if she had been 18 at the time of the murder. 

Teens Arrested In Brutal Baltimore Carjacking:  A 69-year-old man was carjacked, thrown to the ground, and run over by a group of teens in front of his home last week.  Jonathan  McCall of CBS Baltimore reports that the attack, which occurred on the morning of January 3 in a quiet middle-class neighborhood, was caught on video by a Comcast worker.  The victim, Jim Willinghan, suffered a broken pelvis after the teens, aged 15-16, drove over him with his car.  Four of the teens have been arrested and police are still looking for two others.  Three of the suspects will be charged as adults for attempted, murder, assault, and carjacking.   As noted in earlier posts, Baltimore set a new record last year for homicides, as it's police department operates under a federal consent decree which restricts proactive policing.

Et Tu, Academia?

As the sexual harassment allegations have toppled one famous and powerful person after another, I have often found myself saying "It couldn't have happened to a less-nice guy."  In many, perhaps most (but not all), cases, the person in question was an arrogant, condescending, sneering, obnoxious person, much too full of himself and contemptuous of others in other contexts.  Personality traits are broad, not focused, and it stands to reason that a person who treats others like that generally would also be the kind to engage in this sort of behavior.

Academia has its share of such people, perhaps more than its share, so it stands to reason that this chicken would eventually come home to roost there.  The time may be nigh.  Melissa Korn has this article in the WSJ.

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SCOTUS Hears Two 4th Amendment Cases:  Search and seizure was on the docket yesterday as the Supreme Court heard oral argument in two cases involving 4th Amendment challenges.  Jessica Gresko of the Associated Press reports that in Byrd v. United States, Terrance Byrd was driving his fiancee's rental car when he was pulled over by Pennsylvania troopers for a traffic violation.  After determining that Byrd was not authorized to drive the car and he admitted that he had marijuana, the officers searched the trunk, finding bags of heroin and body armor.  In the appeal of his conviction Byrd's attorneys argued that there was insufficient probable cause for the search.  In the case of Collins v. Virginia, police arrested Austin Collins after he eluded officers on a motorcycle at speeds of up to 140 mph.  After locating what they believed was the house of the suspect's girlfriend, an officer removed a tarp covering the stolen motorcycle in the driveway.  Collins argued that the police were required to have a warrant to search for the motorcycle on private property.   Nina Totenberg of NPR has this take on how the argument went in these two cases.   

USCA8 Rehears Ferguson Civil Case:  The full U.S. Court of Appeals for the Eighth Circuit reheard a case arising out of the notorious Ferguson, Missouri police shooting case in 2014.  Dorian Johnson, who was with Michael Brown at the time of his altercation with Officer Darren Wilson and who later falsely stated that Brown had his hands up, is suing the City, its police chief, and Officer Wilson.  In this pretrial motion to dismiss, the key question is whether Johnson was "seized" within the meaning of the Fourth Amendment.  Rachel Lippmann has this story at St. Louis Public Radio.  The National Police Association submitted an amicus curiae brief, written by CJLF.  Update:  Robert Patrick has this report for the St. Louis Post-Dispatch.
Readers might think that I've finally gone over the edge by posting that the Justice Department can overrule the Supreme Court's holding in Miranda that, in order effectively to preserve the Fifth Amendment, police must give a specific set of warnings to a suspect in custody, on pain that any ensuing statement he gives will be suppressed even if the facts show it was voluntary.

And yes, I would have thought the idea of DOJ overruling SCOTUS was bonkers before I read the Volokh Conspiracy post by Prof. Will Baude of Chicago.  Prof. Baude, by the way, is widely and correctly recognized to be a brilliant mind and one of the future stars of legal academia.  He is also, I should add, not a captive of the Leftist Bubble currently ruling the roost there, a fair-minded and eclectic thinker, and a casual friend of mine.

His Volokh Conspiracy entry dealing with marijuana enforcement policy does not directly say that DOJ can overrule Miranda, to be sure, but his analysis leaves no doubt about it.

DOJ Set to Increase Use of the Death Penalty

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Some of my law professor friends (including Doug Berman, whom I had the pleasure to see at the AALS convention in San Diego a few days ago) have been asking when Attorney General Sessions is going to make more of a push for the death penalty.  The answer came today from, among other outlets, the Wall Street Journal:

"The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime. In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit. The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016. The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations. Mr. Sessions views the death penalty as a 'valuable tool in the tool belt,' according to a senior Justice Department official. The official said the death penalty isn't only a deterrent, but also a 'punishment for the most heinous crimes prohibited under federal law.' The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said." 

Because federal criminal jurisdiction is limited, certainly compared to the states, increased willingness to use the death penalty in federal law will only slightly increase the number of capital cases.  Its principal significance is signalling a welcome new direction from the top..

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SCOTUS Orders Review of Murderer's Bias Claim:  In a 6-3 opinion announced Monday, the U.S. Supreme Court ordered the 11th Circuit to reconsider a Georgia murder's claim that he is entitled to a new trial because of a juror's racially biased statement. Adam Liptak of the New York Times reports that the Court's per curium opinion in Tharpe v. Sellers concluded that an affidavit by a juror in the murder trial Keith Tharpe, which described the defendant as a "nigger," required a full review by the lower court to determine if racial prejudice had resulted in Tharp's conviction and death sentence.  Overwhelming evidence confirmed Tharp's guilt of the shotgun murder of his estranged wife's sister during his ambush, kidnapping and rape of his wife.  The 11th Circuit had previously dismissed Tharp's bias claim.  A dissenting opinion by Justice Clarence Thomas and joined by Justices Alito and Gorsuch, called the majority's opinion "ceremonial hand-wringing."     
Scott Calvert reports for the WSJ:

Baltimore's record-high homicide rate--one of the highest in the U.S.--is tied to decisions in 2015 by local authorities to "cut back" on policing and prosecution, U.S. Deputy Attorney General Rod Rosenstein said Monday

During Mr. Rosenstein's tenure as Maryland's top federal prosecutor, local, state and federal authorities jointly targeted gangs and secured long prison terms for armed criminals, he said during a speech at a meeting of the American Correctional Association in Orlando, Fla. He credited that strategy for keeping the city's homicide rate at a low level until 2014.

"But in 2015, local authorities decided to try a new strategy," Mr. Rosenstein said. "They decided to cut back on policing and prosecution. And what happened next? Baltimore's murder rate skyrocketed."


Murder increased in Philadelphia last year, contrary to the overall trend of America's big cities.  But hang on, there's more.  The people of the city lost their collective minds in the last election, choosing a DA with a pro-murderer mindset.  After only a few days in office, he has taken a major step to make the city safer for murderers and less safe for decent people.

Chris Palmer, Julie Shaw & Mensah M. Dean report for the Philadelphia Inquirer:

Philadelphia District Attorney Larry Krasner ousted 31 members of the office Friday, a dramatic shake-up and the first major staffing decision announced by the city's new top prosecutor, just three days after he was sworn in.
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The sweeping change affected lawyers of all ranks and could represent a 10 percent reduction in the number of prosecutors. Names were not released, but current and former employees -- none authorized to publicly discuss the moves -- said the group included trial attorneys and some supervisor-level staff, many with decades of experience. As many as a third of the office's homicide prosecutors were asked to leave, sources said.

The announcement was the first bombshell in what some of his supporters have hoped -- and his critics have feared -- would be a wave of drastic changes accompanying the installation of the career civil rights lawyer to the city's top law enforcement job.
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Kate Steinle Killer Gets Time Served:  The five-time deportee who fired the gun that killed 32-year-old Kate Steinle in 2015 was sentenced to time served today.  Claudia Cowan of Fox News reports that last November a San Francisco jury decided that  Jose Ines Garcia Zarate had accidently fired the stolen gun that killed the young woman walking with her father on a crowded pier on July 1, 2015.  Garcia Zarate is expected to be turned over to U.S. Marshals for trial on federal charges of being an ex-felon and illegal alien in possession of a firearm.  If convicted he could receive a 10-year sentence and deportation.  His new defense attorney, the renowned Tony Serra, called the federal charges a "vindictive prosecution."  
A motions panel of the Ninth Circuit Court of Appeals has handed a mixed bag to the litigants in the "Sanctuary Cities" cases.

There are a total of four cases in the Ninth Circuit.  Two are the Government's appeals from the preliminary injunctions, and two are from the final judgment and permanent injunction.  Of these, one each is from San Francisco and one from Santa Clara County (San Jose and vicinity).

The Government wanted to consolidate all four cases, maintaining the expedited schedule for preliminary injunction appeals.  The counties wanted the preliminary injunction cases dismissed as moot, since a preliminary injunction has no legal force once it is supplanted by the permanent injunction, and to maintain the leisurely schedule of the final judgment cases.

The motions panel (Reinhardt, Paez, and Bea) dismissed the preliminary cases as moot.  But don't cheer too loud, sanctuary fans.  "The court construes appellants' motion to consolidate as a motion to expedite these appeals. So construed, the motion is granted in part."  The counties' briefs are due February 5, not April 26 as before.  Extensions?  Fuggitaboudit.*  The case will be set for argument on the April calendar, with the exact date, time, and place to be announced later.

The "merits panel" that hears the case will not necessarily be the same as the "motions panel" that issued today's order.

*  Well, actually, they said, "No written motions for extensions of time under Ninth Circuit Rule 31- 2.2(b) will be granted absent extraordinary and compelling circumstances."

Update:  The court is looking at its April 9-13 session in San Francisco and has asked counsel for the parties for their availability on those dates.

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Child Killer Challenges Conviction:  A North Carolina criminal, found guilty in 2013 of the kidnapping, rape, and murder of 5-year-old Shaniya Davis, is asking the state supreme court to overturn his conviction and death sentence because his defense counsel told police where to find the victim's body.  WRAL News reports that habitual felon Mario McNeill had recently been released from probation when he went to Antoinette Davis' mobile home in Fayetteville on November 10, 2009, to collect a $200 debt.  Davis later admitted, "I gave her (Shaniya) to him to cover $200. He was only supposed to have sex."  McNeill left with the child.  He was arrested three days later on suspicion of kidnapping.  Hoping to get a better deal for his client, McNeill's defense attorney told detectives where to find the child's body, which had been dumped in a kudzu patch.  The Associated Press reports that at his trial, where McNeill pled not guilty, the jury deliberations lasted less than an hour.  His appellate attorneys are claiming ineffective assistance of his trial counsel for ruining McNeill's claim of innocence.  McNeill's criminal record includes a 2003 conviction for shooting three people.
Reuters reports from Jerusalem:

Israel's parliament gave preliminary approval on Wednesday for legislation that would make it easier for a court to impose a death sentence on assailants convicted of murder in attacks classified as terrorism.

Israeli military courts - which handle cases involving Palestinians in the occupied West Bank - already have the power to issue the death sentence, although this has never been implemented. The only case of an execution in Israel was carried out against convicted Nazi war criminal Adolf Eichmann in 1962.

The amendment to the penal code would still require three more readings if it is to become law. Currently, a death penalty can only be imposed if a panel of three military judges passes sentence unanimously. If the amendment is adopted, a majority verdict would suffice.

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Migrants Causing Crime Spike in Germany:  A government-funded study in Germany has found that the influx of mostly young male migrants has lead to the recently reported increase in violent crime.  Riham Akusaa of Reuters reports that the study, led by prominent criminologist Christian Pfeiffer, concluded that 92% of the 10.4% increase in violent crime between 2015 and 2016 can be attributed to the increase in refugees, specifically the predominantly young male majority of refugees living in Germany without partners, mothers, sisters, or other females.  Migration will be a key issue in forthcoming coalition talks between Chancellor Angela Merkel's conservatives and the centre-left Social Democrats (SPD). The arrival of more than a million migrants since mid-2015 hurt both parties in last September's election.

Illegal Sex Offender Caught at Border:  A Mexican citizen deported after being incarcerated for the sexual assault of a minor was caught last week attempting to reenter the U.S.  KABC reports that Javier Reyes-Gomez was arrested by border patrol agents at Ocotillo, California.  The Border Patrol told reporters that Reyes-Gomez will be prosecuted for illegal entry and sent to prison if convicted.
Siobhan Hughes reports for the WSJ:

Senate Finance Committee Chairman Orrin Hatch (R., Utah) said he would retire when his term ends early next year, opening the door for a possible political comeback by 2012 GOP presidential nominee Mitt Romney.

"Every good fighter knows when to hang up the gloves," Mr. Hatch, 83 years old, said in a statement. "And for me, that time is soon approaching. That's why, after much prayer and discussion with family and friends, I've decided to retire at the end of this term."

Senator Hatch has been a champion of the cause of justice for a long time.  His leadership on the habeas corpus reforms of the Antiterrorism and Effective Death Penalty Act of 1996 was essential to that landmark legislation.  We thank him for his service and wish him well in his retirement.

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Violent Crime Spikes in San Jose:  Robert Salonga of the San Jose Mercury News reports that the Bay Area's largest city was on track for a 7% increase in violent crime for 2017.  This follows a 14% jump in 2016.  While the mayor of San Jose still considers the city one of the safest in the nation, he admits the trend is causing concern.  The story notes that the Bay Area cities of Hayward, Fremont, Oakland, and Palo Alto also suffered two-year increases in violent crime.  It should be noted that San Jose was among the first cities in the state to fully adopt policies encouraged by AB109, offering split sentences, home confinement, and rehabilitation programs rather than jail time for theft and drug offenders.

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