April 2018 Archives

C-SPAN's Landmark Cases series will look at Gregg v. Georgia (1976) on Monday, May 7, at 9:00 to 10:30 p.m. ET.  The guests will be Carol Steiker of Harvard and me.

Alien Sex Offenders Caught at CA Border:  Border agents working in Indio California arrested two previously deported Mexican nationals with prior sexual assault convictions last week.  Jesus Reyes of KESQ reports that Juan Manuel Arteaga-Godinez, who  was caught crossing the border last Tuesday, had prior San Diego convictions for sexual battery and child molesting.  Late Wednesday agents caught Walter Inzunza-Cervantes near Calexico.  He had been deported after serving time for felony sexual battery.  Both offenders face federal prosecution.  

Methods of execution are back on the docket of the U.S. Supreme Court.  This time the claim involves a generally valid method which the murderer claims would be cruel as applied to him because of his rare medical condition.  Here is what the person now claiming that pentobarbital is cruel did to four other people, according to the federal court of appeals' panel opinion:

In March 2006, Bucklew stole a car; armed himself with pistols, handcuffs, and a roll of duct tape; and followed his former girlfriend, Stephanie Ray, to the home of Michael Sanders, where she was living. Bucklew knocked and entered the trailer with a pistol in each hand when Sanders's son opened the door. Sanders took the children to the back room and grabbed a shotgun. Bucklew began shooting. Two bullets struck Sanders, one piercing his chest. Bucklew fired at Sanders's six-year-old son, but missed. As Sanders bled to death, Bucklew struck Ray in the face with a pistol, handcuffed Ray, dragged her to the stolen car, drove away, and raped Ray in the back seat of the car. He was apprehended by the highway patrol after a gunfight in which Bucklew and a trooper were wounded.

Missouri still has pentobarbital, and the single-drug method with that drug is the best method presently in widespread use.  It is routinely used in animal euthanasia.  Bucklew's claim is that could cause of "prolonged and extremely painful execution" because of his cavernous hemangioma.

After twice failing to meet the Glossip v. Gross requirement of identifying an available alternative with substantially less risk of pain, Bucklew finally made the assertion that "lethal gas" would be better, specifically "death through nitrogen gas-induced hypoxia."

There is some reason to doubt whether Deputy Attorney General Rod Rosenstein was within his authority when he gave Special Counsel Robert Mueller a scope of investigation and prosecution that exceeds the scope of Attorney General Sessions's recusal.  Only the Attorney General and Acting Attorney General can appoint a special counsel (28 CFR § 600.1), and Mr. Rosenstein is Acting Attorney General only as to those matters on which Mr. Sessions is recused.  Business dealings of Paul Manafort that have nothing to do with the 2016 political campaign are not within that scope.  So Mr. Manafort may well have a legitimate claim that the Special Counsel has no authority to prosecute him for unrelated matters.

Even so, filing a separate civil suit to restrain prosecution was doomed to failure, and today Judge Amy Jackson dismissed it.

But a civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal. Therefore, the Court finds that this civil complaint must be dismissed.

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For all of these reasons, Manafort's civil case will be dismissed, and his concerns regarding the Special Counsel's investigation will be taken up in the criminal case.

The opinion also discusses the Younger abstention doctrine, which is partly based on federalism (which is not applicable here) and partly on the traditional rule that equity will not enjoin a criminal prosecution (which is).

C&C Blog may be down for brief intervals this week as we upgrade our system.

Another Try For Federal Sentencing Reform:  Senate Judiciary Committee Chairman Chuck Grassley is taking another stab at passing his "Sentencing Reform and Corrections Act" which died in the Senate two years ago.  In an opinion piece published by Fox News, Senator Grassley defines the habitual drug dealers in federal prison as non-violent, lower level offenders who should not be behind bars, but in less-expensive rehabilitation programs.  His bill reduces sentences for drug dealers and gives federal judges authority to shorten them even more, while allowing them to grant early release to currently incarcerated dealers.  But former Assistant FBI Director Ron Hosko writes that reducing sentences for drug dealers will promote more drug dealing along with the gang violence that accompanies the drug trade.  Responding to the claims of harsh sentencing Hosko notes that half of federal prisoners are serving terms of 10 years or less, while just 16% are serving terms of 20 years or more.  He also points out that the current federal sentencing guidelines give prosecutors the ability to bargain with offenders, trading reduced charges for the names of cartel leaders and major suppliers of fentanyl, which has caused a recent epidemic of fatal overdoses. " 'Grassley's legislation is both poorly timed and ill-advised. It's little more than a rehashed "jailbreak" bill that should be permanently scrapped, taking with it the mistaken notion that federal prisons remain filled with "low level, non-violent" drug offenders.' "        

One controversial use of DNA databases created by law enforcement involves searching the database for people's whose DNA is close to that of an unknown sample, indicating that they might be close relatives of a perpetrator who is not in the database.

The notorious East Area Rapist case in California was cracked by a new twist on that strategy.  Rather than law enforcement databases, the leads came from family members who voluntarily sent their DNA in to commercial testing organizations for genealogical purposes.  These matches were only leads to identify a possible suspect.  The suspect was actually nailed through DNA-bearing material he discarded.  Sam Stanton has this story for the Sacramento Bee.

So far the suspect has only been charged with murders, not rapes.  There is a statute of limitations problem.  See this story by Ryan Lillis in the SacBee.

It's springtime, and we all know what blooms in the Spring.  That's right, amendments to the rules of procedure for federal courts.

The odd system for these rules is that the Judicial Conference recommends them to the Supreme Court, the Court adopts them (as recommended or with its own alterations) tentatively by sending them to Congress before May 1, and if Congress does nothing by December 1 they take effect.

The amendments are on the Supreme Court's order page.

The amendment to Rule 41 of the Appellate Rules is noteworthy.  It addresses abusive delay in issuing the mandate.  The Judicial Conference explains:

The proposed amendments to Rule 41 (Mandate: Contents; Issuance and Effective Date; Stay) would revise subdivision (b) to clarify that an order is required for a stay of the mandate - the court of appeals cannot delay issuance of the mandate by mere inaction. It would also renumber subdivision (d)(2)(B) to subdivision (d)(2), and would address a potential gap in the rule by amending subdivision (d)(4) (former subdivision (d)(2)(D)). The proposed amendment to subdivision (d)(4) provides that a mandate stayed pending a petition for certiorari must issue immediately once the court of appeals receives a copy of the Supreme Court's order denying certiorari, unless the court of appeals finds that extraordinary circumstances justify a further stay. Also, the reference in prior subdivision (d)(2)(D) to the filing of the Supreme Court's order is replaced by a reference to the court of appeal's receipt of a copy of the order for greater clarity.

See Arizona's certiorari petition in Ryan v. Poyson, No. 17-1274.

I don't often agree with J. Anthony Kline, Presiding Justice of the California Court of Appeal for the First District.  But I do agree with this letter to the editor in The Recorder, a SF legal newspaper:

At the June election, four public defenders hope to unseat four judges of the San Francisco Superior Court, Andrew Cheng, Curtis Karnow, Cynthia Ming-mei Lee, and Jeffrey Ross. According to one of the challengers, "this was really a group decision."

More is at stake in this election than initially meets the eye; and it imposes special responsibilities on the legal community.

The most notable aspect of the challenge to these judges is the reason for it, which has nothing to do with either the quality of their work or the measure of their character. Although none of the judges is a Republican (all are Democrats), they were targeted for the stated reason that all were appointed by a Republican Governor. One of the challengers says that "this is not about politicizing the bench, not about judicial independence" but only about the fact that "a Schwarzenegger appointee doesn't reflect the values of our community, it's that simple."

It is not that simple; the statement is transparently ridiculous. The effort to defeat four of the most able, compassionate, and experienced judges in northern California simply because they were appointed by a Republican Governor in an overwhelmingly Democratic county is an unmitigated act of political opportunism.

Perhaps it is time (perhaps past time) to make selection of Superior Court judges the same as Court of Appeal judges -- appointment by the governor followed by yes/no retention elections.

Quin Hillyer has this article in the National Review:

Who will decide which laws are too vaguely worded to be constitutional? By that standard, the courts could invalidate a vast number of laws.

Some conservative analysts are unwisely praising Supreme Court Justice Neil Gorsuch for joining the court's four committed liberals to keep a felonious immigrant from deportation.

These estimable analysts, including columnist George Will and the Wall Street Journal editorial board, give too much credit to Gorsuch's elegant concurring opinion, but far too little credit to the powerful dissenting opinions by Justice Clarence Thomas and the other three conservative (or sometime-conservative) justices.

I would note that Will is a libertarian, not a conservative, and the WSJ editorial board often leans that direction as well.

The United States Supreme Court heard oral argument today in Trump v. Hawaii, No. 17-965, involving the third version of the President Trump's executive order sharply limiting immigration from certain countries.  The transcript is on the Court's website.

Most observers think that the argument went well for the Government.  Amy Howe at Howe on the Court says, "After over an hour of debate, a majority of the court (and perhaps even a solid one) appeared ready to rule for the government and uphold the order in response to concerns about second-guessing the president on national-security issues."

So it should.  This version of the order is solid and carefully considered.  It is well within the Chief Executive's sweeping authority over these issues.

CJLF did not file an amicus brief in this stage of the litigation.  For "Travel Ban 2.0," we filed a brief arguing that the case was moot.  We were the only ones to make a substantial argument to that effect in the main briefing (although the SG came along in a supplemental), and that was the holding of the Court.  We considered it strategically better for the Court to reach the merits in TB 3.0 rather than TB 2.0 because it is much more defensible ground.

Expect an opinion at the very end of the term in late June or early July.

Sam Stanton and Benjy Egel report for the Sacramento Bee:

After four decades of dead ends, Sacramento law enforcement leaders announced Wednesday they arrested the man they believe was the East Area Rapist who killed and terrorized people in the 1970s and 1980s.

Sacramento County District Attorney Anne Marie Schubert and Sheriff Scott Jones said they relied on DNA evidence to arrest Joseph James DeAngelo, 72, who lived for more than three decades on a quiet street in Citrus Heights.

He was never considered a suspect until six days ago.

"We found the needle in the haystack, and it was right here in Sacramento," Schubert said.

The East Area Rapist, also known as the Golden State Killer, the Original Night Stalker and the Diamond Knot Killer, is believed to have killed at least 12 people, raped at least 45 victims and burglarized hundreds of homes.

Double-Murderer to Be Executed:  A Fort Worth gang member who murdered a woman and her 5-year-old granddaughter in 2008, is scheduled for execution tonight.  Keri Blakinger of the Houston Chronicle reports that Erick Davila was denied clemency and a last minute review by the 5th Circuit Court of Appeals on Monday.  In a petition to the 5th Circuit Davila's lawyers claimed, for the first time, that their client was heavily intoxicated on drugs and may have been temporarily insane when he opened fire on a child's birthday party killing the woman and child and injuring several others.  Last June, the U.S. Supreme Court rejected Davila's claim that his conviction should be overturned because his appellate attorney failed to present alleged errors made by his trial attorney.  CJLF introduced argument in that case to encourage the court's 5-4 decision, which noted that "Adopting petitioner's argument could flood the federal courts with defaulted claims of appellate ineffectiveness.  For one thing, every prisoner in the country could bring these claims."  Update:  The execution was carried out about 6:30 pm CT.  The AP story is here.  The Supreme Court order denying a stay and declining to take up the case is here.  There are no recorded dissents. 

The Consequences of Sentencing Reform:  Opponents of progressive sentencing, which increases the punishment for repeat offenders, prefer the term "sentencing reform" over the more accurate "sentencing reduction," when discussing schemes to reduce the consequences for crimes.  "Reform" just sounds better.  But, according to a report by the Los Angeles County Sheriff and a post by the head of the LA Association of Deputy District Attorneys (ADDA), sentencing reforms adopted in California over the past seven years are hurting thousands of innocent people.  The Sheriff's report focuses on Proposition 47, which converted most property and drug crimes from felonies to misdemeanors with no additional consequences for repeat offenders.  Since its adoption in 2014, there have been 78,537 arrests for crimes converted to misdemeanors.  Over 32,000 of those arrested have be rearrested at least twice, with 25,000 arrested for major crimes, such as murder, rape, robbery, assault, and grand theft auto.  Between 2014 and 2017, homicide in the county increased by 24.5%, 37.7%, and 22.5% respectively.  Rape increased by 47.4%, 76.6%, and 60.8%.  Larceny, robbery, and auto theft also increased dramatically.  Michele Hanisee of the ADDA focuses on Proposition 57, Governor Brown's 2016 "reform," which gives repeat felons, even those with violent priors, eligibility of early release from prison.  Since it was enacted, District Attorneys across the state have reported on criminals with rape, robbery, and other violent priors, who have been released years early because Proposition 57 allows state parole officials to ignore a felon's prior crimes and declare him a "low risk" for violence.  Countering claims by proponents that the measure has not allowed the release of violent criminals, Hanisee cites a couple of recent examples of criminals who have been released that no rational person would consider non-violent.

Will Trump Rebuild the 9th Circuit?  With the death of "liberal lion" Stephen Reinhardt and resignation of Alex Kozinski, the notorious 9th Circuit Court of Appeals now has seven vacancies, which if filled with conservatives, could provide some balance to the most liberal and most powerful of the federal circuits.  Barnini Chakraborty of Fox News reports that while President Trump has nominated two judges to the court since his election, Democrats are digging in to block the confirmation of any Republican nominee.  During the Obama Administration, Democrats did away with the practice of allowing a senator to "blue slip" (void) a nominee to a federal court in his home state.  Today, Democrats are insisting that they be allowed to use the blue slip to block any Trump pick to the court.  CJLF Legal Director Kent Scheidegger noted that the 9th has been "out in left field" since President Carter packed it with liberals in the 1970s.  

The U.S. Supreme Court has jumped once more into the question created by habitual criminal laws and the variation in the definitions of crimes across jurisdictions.  The problem is particularly acute for federal courts, because the "priors" are usually in state court.

The "three strikes" provision of the Armed Career Criminal Act of 1984 imposes a sentence of 15-to-life for unlawful possession of a gun by a felon if the felon has three previous convictions for "a violent felony or a serious drug offense."  The list of offenses qualifying as "violent" includes "burglary" without elaboration.  See 18 U.S.C. § 924(e)(2)(B)(ii).

Burglary was given a very narrow definition at common law because it was a felony at a time when all felonies were punished by death.  Once American legislatures began restricting capital punishment to a much narrower class of crimes, they also began expanding the definition of burglary.  The expansions included commercial buildings as well as residences, daytime entry as well as nighttime, and unlawful entries without a requirement of "breaking."  The residency requirement remains in some states as an element of a higher degree of the crime.

In Taylor v. United States, 495 U.S. 575, 599 (1990), the Supreme Court decided that "burglary" for the ACCA includes "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime."

How about "structures" that are mobile but "designed or adapted for the overnight accommodation of persons"?

Oklahoma State Senator Ervin Yen is an anesthesiologist.  According to his official bio:

After completing his residency in 1984, he began practicing as an anesthesiologist. Dr. Yen has worked as a cardiac anesthesiologist at Saint Anthony Hospital and Integris Baptist Medical Center for more than 20 years....He is a past president of the Oklahoma Society of Anesthesiologists and past Chief of the Anesthesiology section at St. Anthony Hospital.

So Senator Yen knows more about pain and its prevention than most legislators, most lawyers, and for that matter most doctors. 

Quinton Chandler has this article and audio report for NPR station KOSU.  The article begins with the usual blather.  "Officials say nitrogen will bring quick, painless deaths, but the research is slim -- and it has never been used in U.S. executions."  What kind of "research" does this refer to?  The effects of breathing pure nitrogen instead of air are well known.  It causes hypoxia.  The effects of hypoxia have been extensively researched, and there is extensive experience from aviation.  Research specifically on use in executions obviously can't be done, so the implication that we have to have such research before a new method can be tried is a Catch-22 constructed by death penalty opponents.  Similarly, the objection that a new method which promises to be better than existing methods has never been used before is nonsensical.  That's what makes it "new," folks.

Senator Yen was a co-sponsor of the bill that authorized nitrogen hypoxia as a method of execution:

He says the inmates would die from "lack of oxygen," not exposure to nitrogen.

Yen says this is not the same as choking to death, during which the "blood level of carbon dioxide would go up drastically." That carbon dioxide buildup is the primary reason for discomfort, Yen said. "Like, anxiety, and you might start sweating, and your blood pressure might go up."

Yen says when a person breathes nitrogen, they're still exhaling carbon dioxide which means they won't feel the same painful carbon dioxide buildup. They'll go to sleep and if they don't get oxygen, they'll eventually die.

In Yen's medical opinion, nitrogen hypoxia would not be painful and it wouldn't fall under the constitutional ban on cruel and unusual punishment.

SCOTUS Hears Travel Ban Case Wednesday:  The Supreme Court will hear argument in the Ninth Circuit case of Trump v. Hawaii Wednesday.  As reported on SCOTUSblog roughly 75 amicus briefs have been filed in the case, with the bulk of them arguing in opposition to the President's Executive Order suspending entry into the United States of aliens from eight countries which do not maintain information on their citizens needed to determine if they pose a threat to national security.  Jess Bravin and  Brent Kendall of the Wall Street Journal report that the lower courts have held the restrictions to be an unlawful extension of executive authority because the administration has not adequately proven that allowing visitors from the selected countries pose a national security risk.   Solicitor General Noel Francisco argues the courts have no business examining the travel ban at all. "Congress has granted the president sweeping power to suspend or restrict entry of aliens abroad," he writes. Mr. Trump "lawfully exercised that power based on his express findings--following a world-wide, multiagency review--that entry of the covered aliens would be detrimental to the national interest."

Luke Nichter has an op-ed in the WSJ titled A Vietnam Myth That Refuses to Die. It illustrates how an allegation can be widely repeated and come to be accepted as fact if it fits in with the preconceptions that most journalists share, even if the evidence to support it is flimsy.  We see this on crime issues regularly.

This is why the journalism profession would be greatly improved by greater diversity of viewpoint.  Everyone has confirmation bias.  It's only human.  But if a group of people has a diversity of viewpoints, then any assertion will have a substantial number of people willing to challenge it.

Kern County DA Lisa Green announced that her office will not retry Vicente Benavides Figueroa, whose conviction and death sentence were overturned by the California Supreme Court on March 12 in state habeas corpus proceedings.

The DA's decision illustrates that a decision not to retry a case is not the same as a finding that the defendant is actually innocent.  She concludes that "upon an objective review of the facts, there is insufficient evidence to establish guilt beyond a reasonable doubt."

So this is one of those cases where the other side will crow "exonerated," much of the public will misunderstand that to mean actually, demonstrably innocent, and the truth will never be known for sure.

An additional factor in the DA's decision is that even if they did get a second-degree murder conviction, between Benavides's age and the time he has already spent in prison there is a strong chance he would be paroled promptly.

How would a case like this be handled if it arose today under Proposition 66?  In this case, the habeas corpus petition was filed directly in the California Supreme Court, an overloaded court that is institutionally unsuited to deciding fact-heavy questions.  It took 16 years from filing to decision.

Under Proposition 66, the case would have been filed in the Kern County Superior Court, and that court's decision would have been reviewed by the Court of Appeal for the Fifth District.  It is likely that the same result would have been obtained, and considerably faster.  Even though it would have had to go through two courts, and probably a review petition to the Supreme Court, those courts are quite capable of completing even complex cases in less than 16 years combined.

Peter Loftus reports for the WSJ:

An advisory panel to the Food and Drug Administration recommended the agency approve what could become the first prescription drug in the U.S. derived from the marijuana plant, as a treatment for people with rare forms of epilepsy.

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The FDA is expected to decide by the end of June whether to approve the drug for sale. The agency isn't required to follow the advice of its advisory committees but usually does. GW Pharmaceuticals proposes to call the drug by the brand name Epidiolex.

Is removal of marijuana from Schedule I likely to happen this year?

Executing Aging Murderers:  On the day that Alabama is preparing to execute of pipe-bomb killer Walter Moody, the issue of aging death row inmates is back in the news.  Moody, 83, faces execution later today for planting a bomb which killed federal judge and civil rights champion Robert S. Vance in 1989.  Kim Chandler of the Associated Press reports that, if executed, he would be the oldest murderer put to death since the 1970s. "Killing a fragile man suffering from dementia is unnecessary and cruel," said Bryan Stevenson of the Equal Justice Initiative.  But a major reason for the aging death row population is the decades of unnecessary post conviction review of capital cases. Particularly in cases where guilt is undisputed and the only claims the defendant is making are challenges to the sentence.    

Another Illegal Alien Uber Rapist:  Ghanian national Frederick Amfo posted bail and fled the country last weekend after a Friday arraignment on a rape charge stemming from an April 6 assault.  Antonio Planas, Marie Szaniszlo of the Boston Herald report that Amfo was driving for Uber when he picked up Emily Murray early that morning, took her to a deserted street and raped her.  After the arraignment, the wonderfully accommodating District Court allowed him to post bail, and told him to surrender his passport within 24 hours, leave the victim alone, and stop driving for Uber.  Remarkably, Amfo failed to surrender his passport and instead boarded a plane for Ghana.  The Herald story failed to mention that Amfo was illegally in the sanctuary state of Massachusetts and that according to ICE a federal immigration detainer should have been placed on him.  Lucia Sauarez Sang of Fox News reports that Weymouth police claimed it forwarded the detainer to Quincy District Court but "The court chose not to forward the detainer to Norfolk County, allowing for his subsequent release on bail from custody," an ICE spokesman said in a statement. "This case highlights the potential dangers of policies that prohibit cooperation with ICE."

Court Rejects Challenge to Ohio Death Penalty:  The Ohio Supreme Court unanimously upheld the constitutionality of the state's death penalty today, rejecting a challenge by a convicted rapist/murderer.  Andrew Welsh-Huggins of the Associated Press reports that death row inmate Maurice Mason claimed that because a judge makes the final decision to impose a death sentence, Ohio's law is similar to the Florida law overturned the the U.S. Supreme Court in 2016.  The court disagreed, noting that unlike Florida's former process, Ohio juries must specifically find any aggravating circumstances that qualify the murderer for a death sentence.  The court also noted that Ohio juries must be unanimous in its recommendation for a death sentence.  Mason was convicted and sentenced to death for the February 8, 1993, rape and murder of Robin McDuffie, the wife of a friend.  After the rape he  beat the woman to death with a board with nails protruding from it.  Substantial evidence including a DNA match and several witnesses convinced the jury of Mason's guilt.

Alien Gang Members Protected by CA Law:  Dozens of illegal aliens who are members of criminal gangs were protected from deportation last year by sanctuary laws which prohibit state law enforcement from cooperating with federal immigration authorities.  Not surprisingly, two thirds of the gang members released were in California.  Adam Shaw of Fox News reports that  among the criminals released were several members of the violent MS-13 gang which is responsible for numerous machete and baseball-bat murders of mostly young immigrants.  In remarks to the National Press club earlier this week California Governor Jerry Brown said that the attention payed to enforcing immigration law was just an "an inflammatory football that very low-life politicians like to exploit. And I think it's shocking, it's despicable and it's harmful to California, mostly to the people." 
 

Today the U.S. Supreme Court decided Sessions v. Dimaya, regarding deportation and the vague definition of "crime of violence."  Justice Kagan's opinion is mostly for a majority, and hence "the opinion of the Court," but Justice Gorsuch splits off in part.  The variations in the opinions are interesting here.

"[R]emoval is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here," the opinion says.  I have noted on this blog more than once that the basic rule is a good one but the definition of "aggravated felony" is a mess requiring congressional attention.  Here is the essence of today's holding:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law's definition of "violent felony" was impermissibly vague. See 576 U.S. ___ (2015). The question in this case is whether a similarly worded clause in a statute's definition of "crime of violence" suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The statute in question is one item in the immigration law's long list of aggravated felonies, a cross-reference to the general definition of "crime of violence" in the federal criminal code, 18 U.S.C. § 16:

Several aspect of the law of federal habeas corpus require the federal court to examine the basis of an earlier state court decision.  Was it based on a procedural default rule, the merits, or both?  If on the merits, was it a reasonable application of Supreme Court precedent on the issues decided, and, if not, what to do about the issues left undecided?

And what does a federal court do when a state court renders an opinion explaining its reasons but later decisions of the same or a higher court simply summarily deny relief?

In Ylst v. Nunnemaker, 501 U.S. 797 (1991), a procedural default case, the high court announced the "look through" rule.  Although normally the last state court decision is where a federal court should look, if that decision is unexplained the federal court will look through it to the last explained decision.

Does the Ylst "look through" rule apply to the "deference" rule of the Antiterrorism and Effective Death Penalty Act of 1996 as well?  Yes, the high court ruled today in Wilson v. Sellers.  That was the position both parties had taken earlier in the litigation, but the Eleventh Circuit had ruled to the contrary, and the Georgia Attorney General's Office changed its stance at the Supreme Court level.

Will this change the outcome of many cases? Justice Gorsuch, dissenting, does not seem to think so.

"When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head. We have literally filled up our jails with people who are nonviolent and frankly do not belong there."

--Former House speaker John A. Boehner (R-Ohio), in an interview with Bloomberg News, April 11, 2018

WaPo Fact Checker Glenn Kessler awards the former Speaker the maximum Four Pinocchios for this claim.  That's a "whopper," and not a hamburger.

So what do we find? In the state correctional institutions, only 3.4 percent of prisoners were in jail for all types of drug possession as of Dec. 31, 2015, according to the Justice Department. While Boehner claimed that the prisons have been filled with nonviolent prisoners, the data show that 54.5 percent are in prison for violent crimes such as murder, rape and robbery and 18 percent involve property crimes; another 11.6 percent are in prison for public order offenses.

CA Reneges on Guard at Border:  After agreeing last week to dispatch National Guard troops at the California/Mexico border, the State has withdrawn the offer announcing that it will not allow its troops to fix and repair vehicles, operate remotely-controlled surveillance cameras to report suspicious activity to the Border Patrol, operate radios and provide "mission support," which can include clerical work, buying gas and handling payroll.   Elliott Spagat of the Associated Press reports that according to state officials these activities are too closely tied to immigration enforcement to be performed by the troops.  Negotiations between state and federal officials soured Friday and over the weekend after state authorities told federal officials that they would not participate in vehicle maintenance and the other jobs outlined for an initial phase across the border in California, Arizona, New Mexico, and Texas, the U.S. officials said.

Barry Latzer has this article with the above title in the City Journal on the Kerner Commission Report half a century ago.

Fifty-one years ago, in July 1967, in response to an explosion of rioting in poor black urban neighborhoods around the United States, President Lyndon B. Johnson created a National Advisory Commission on Civil Disorders, to be headed by Illinois governor Otto Kerner. The Kerner Commission issued its report seven months later, on February 29, 1968 ...

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In one sense, the Kerner Report reflected the liberal optimism of its era: federal programs to provide job training, social welfare, and slum clearance would right the wrongs of racism, it was widely believed. But in its bleak analysis and failure to account for the profound changes that had already been set in motion, the report also signaled the liberal pessimism that has become predominant on racial matters ever since. It's easier to see, looking back 50 years later, that the United States was headed in the right direction. The great crusade for civil rights not only drove down residential segregation; it also created opportunities for genuine African-American socioeconomic advancement. Yet the Kerner Report remains somehow deathless, its erroneous predictions taken as prophecy, its misguided prescriptions still blocking more constructive approaches to the problems that remain.

As today's News Scan notes, Uber has announced it will do annual background checks for its drivers.  That is a step in the right direction, but not a big enough step.

CEO Dara Khosrowshahi has a post on Uber's website titled "Getting serious about safety."

Since Uber got started nearly nine years ago, we have conducted criminal and driving record screenings on millions of people. While no background check is perfect, our process is thorough, fair, and relevant to the work at hand. However, we can do more to ensure drivers continue to meet our standards on an ongoing basis, long after they take their first trip. Moving forward we will increase due diligence to strengthen our screening process:

The two paragraphs that follow describe the annual checks and new offense notifications.  Okay, they are getting more serious about new offenses.  How about old ones?  Follow the link in the above paragraph and what do we find?

Uber Starts Yearly Criminal Background Checks:  Officials at the headquarters of Uber have announced that the company will do annual criminal background checks of its drivers to assure that riders are safe.  Tom Krisher of the Associated Press reports that the move is in response to widespread reports of Uber drivers attacking passengers including sexual assaults.  Colorado fined the company $8.9 million last year for allowing people with criminal records to work as drivers.  The company is instituting other safety features including an app that allows riders to call 911 in an emergency. Uber does 15 million trips per day worldwide.

John Myers reports for the L.A. Times:

Gov. Jerry Brown agreed on Wednesday to expand the California National Guard's efforts on crime and drug issues that cross the state's border with Mexico, but insisted troops would not be used to enforce immigration directives from President Trump.

"This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life," Brown wrote in a letter to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James N. Mattis. "And the California National Guard will not be enforcing federal immigration laws."

Here is the text of the letter:

The U.S. Court of Appeals for the Ninth Circuit heard oral argument today in the cases of San Francisco v. Trump and Santa Clara v. Trump involving section 9(a) of Executive Order 13,768 which addresses eligibility for federal grants of jurisdictions that refuse to comply with a federal statute, 8 U.S.C. § 1373.  CJLF's amicus brief is here.  Maura Dolan has this story for the L.A. Times.

The court has the video here.  USCA9 does have one of the best-run administrations of any court I practice in.  Many courts stream argument video live and post it on the site eventually, but not many get the archive video up the same day.

From the L.A. Times:

"The point of this order is to use federal dollars as a weapon to defund sanctuary cities that don't comply with the policy the president prefers," said Deputy San Francisco City Atty. Christine Van Aken.

"The policy the president prefers" in this case is an Act of Congress that was enacted over 20 years ago and signed by President Clinton.  It's one of those pesky laws that the President "shall take Care ... be faithfully executed." See U.S. Const. art. II § 3.

Nevada Murderer's Death Sentence Upheld:  On Monday, the Nevada Supreme Court upheld the death sentence of a truck driver who raped and murdered a 16-year-old girl in September 2006.  Geoff Dornan of the Nevada Appeal reports that the court unanimously rejected Tamir Hamilton's claim that, rather than an insanity defense, his team of lawyers should have presented evidence that his chronic drug use made him unable to form the intent required for first-degree murder.  Hamilton's DNA was among the evidence that convinced a jury that he had brutally raped, mutilated, and murdered Holly Quick, nearly severing her head.  He had priors for aggravated assault, the rape of a college student, and the rape of his former girlfriend.

Sheriffs Oppose Sanctuary State Law:  The National Sheriffs' Association has joined a federal lawsuit to overturn California laws which prohibit state law enforcement, private citizens, and businesses from cooperating with federal agencies to identify and deport illegal aliens.  Bob Egelko of the San Francisco Chronicle reports that the group, which represents all 58 of California's elected county sheriffs, filed an amicus curiae brief attacking SB54, arguing that by concealing an alien's whereabouts from federal agents, the law "coerces local law enforcement to violate the federal anti-harboring statute."   CJLF has also filed an amicus curiae brief in United States v. California, arguing that by prohibiting private businesses from voluntarily cooperating with federal law enforcement SB54 violates the Constitution's Privileges or Immunities Clause.

Washington Killer Challenges Death Penalty:   A convicted murderer on Washington's death row is asking the State Supreme Court to overturn his death sentence and find the state's death penalty unconstitutional.  Austin Jenkins of the Northwest News Network reports that, armed with a 2014 report from the University of Washington, attorneys for Allen Gregory argue that Washington jurors are more that 4 times more likely to sentence a black murderer to death than a white murderer. The validity of the report has been the subject of vigorous debate since it was released.  Matt Driscoll of Seattle Weekly reports on the reason Gregory is on death row.  On July 27, 1996, a friend found  47--year-old bartender Genie Harshfield's nude body lying face down,  with her hands tied behind her back.  She had been raped, beaten and stabbed three times in the back and her throat was slit.  DNA evidence tied Gregory to the murder.  In 2000, Gregory was also convicted of the forcible rape of a teenaged girl.  The victim identified Gregory, memorized his license number, and Gregory's DNA matched samples recovered on the victim.  That conviction was overturned in 2006 for trial errors unrelated to his guilt.   

In January, the California Court of Appeal in San Francisco issued a highly controversial decision on bail, and the Attorney General declined to seek Supreme Court review.  This was too much even for the District Attorney of San Francisco, Evan Sernoffsky reports for the SF Chronicle:

San Francisco District Attorney George Gascón has asked the California Supreme Court to review a landmark lower-court ruling that prohibits authorities from holding criminal defendants in jail solely because they can't afford to pay bail to get out.

The First District Court of Appeal in San Francisco issued the ruling in January, reshaping California's cash-bail system. State Attorney General Xavier Becerra decided in February not to appeal the decision, and courts around the state are scrambling to interpret what is required.

Gascón has been among the supporters of cash-bail reform, and said he recognizes inequity in the current system. But the appeals court ruling, he said, hampers the ability of prosecutors and the court system to protect the public.

Only a party to the action can petition for California Supreme Court review, but others can urge the court to take a case on its own motion.  The failure of executive officers to seek review of major decisions has been a huge problem in California for some years now.

Are Teachers Racists?  The Obama administration thought so, and implemented "Rethink Discipline" guidelines in 2014 calling for reduced suspensions and expulsions, citing data showing that students of color and those with disabilities were up to three times as likely as white students to face these punishments, often for similar nonviolent offenses. As noted in this piece by Manhattan Institute scholar Heather MacDonald, "Administration officials used litigation and the threatened loss of federal funding to force schools to reduce suspensions and expulsions radically in order to eliminate racial disparities in discipline."  Did this reduce violence and disruptive behavior in schools?  Researchers with the Wisconsin Institute for Law and Liberty recently reported a national increase in school violence including more assaults on teachers and students.  By ignoring the disparities in the behavior of black, white and Hispanic students this policy has forced schools to leave disruptive students in classrooms.  "Teachers are among the most liberal professionals in the country.  Education school is one long marinade in white-privilege theory.  Yet we're supposed to believe that once these social-justice warriors enter the classroom, they are unable to evaluate their black students fairly.  Overcome by prejudice, they see disruption and defiance where none exists."    

Paul Cassell and Richard Fowles have this paper on SSRN with the provocative title What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the "ACLU Effect" and The Role of Stop and Frisks in Preventing Gun Violence.  Paul has this post at the Volokh Conspiracy discussing the paper.  Here is the abstract:

Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed-274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.

This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides with the spike. Regression analysis of the homicide spike and related shooting crimes identifies the stop and frisk variable as the likely cause. The results are highly statistically significant and robust over a large number of alternative specifications. And a qualitative review for possible "omitted variables" in the regression equations fails to identify any other plausible candidates that fits the data as well as the decline in stop and frisks.

The Criminal Justice Legal Foundation has filed an amicus brief in United States v. California, USDC ED Cal. No. 2:18-cv-00490.  Here is the Summary of Argument:

The Privileges or Immunities Clause of the Fourteenth Amendment has been construed very narrowly by the Supreme Court, but it has not been stripped of all meaning. Among the privileges that the Supreme Court has found included is the duty and right of every citizen to assist federal law enforcement and to give information regarding violations.

By the same principle, citizens have a right and duty to ensure their own compliance with federal law. Because the contours of the law are often uncertain and underlying facts are often unclear, ensuring compliance sometimes means going further than the measures that may, in retrospect, be found to meet the bare minimum for compliance. A state law that punishes citizens for doing anything more than the bare minimum required by federal law therefore, in practice, impairs the ability of the citizens to ensure their own compliance.

Child Killer's Death Sentence Overturned:  A divided Florida Supreme Court overturned the death sentence of a man who made national news for the kidnapping, sexual assault, and murder of 11-year-old Carlie Brucia.  Jim Saunders of the Orlando Weekly reports that Joseph Smith was caught on surveillance video grabbing the girl at a carwash on February 1, 2004.  Police released the video to the media requesting help in identifying the kidnapper, and several people contacted detectives to report that Smith was the man in the video.  Following his arrest, Smith told his brother where he had left the girl's body.  At trial, the jury reviewed overwhelming evidence, including Smith's DNA on the victim's clothes, and unanimously convicted him of capital murder. The same jury later voted 10-2 recommending a death sentence.  At that time, Florida did not require a unanimous jury, and Smith was sentenced to death.  Over the next 13 years, Smith's conviction and death sentence were upheld on appeal and his numerous claims of trial error were rejected on habeas corpus.  In 2017, Smith petitioned Florida's highest court, citing the U.S. Supreme Court's decision that year in Hurst v. Florida, which held that the state's requirements for jury findings in capital cases were unconstitutional.  The Florida Supreme Court upheld Smith's claim based upon Hurst and its own subsequent ruling which required that the jury must be unanimous to recommend a death sentence.  Smith will now receive a new sentencing trial.

100 CA Grow Houses Seized:  Federal agents have seized about 100 residential homes in the Sacramento area being used as illegal marijuana grow houses.  Angela Musallam of CBS Sacramento reports that agents found more than 60,000 pot plants in the homes and at least $100,000 in cash.  The homes are believed to be owned by a criminal enterprise in China which were using them grow marijuana later shipped all over the U.S., particularly to major East Coast cities.  U.S. Attorney McGregor Scott told reporters that the investigation into the grow houses is the largest of its kind in the nation.  Scott said that the Chinese cartel put up more than $6 million to buy the homes through straw purchasers.  85% of the purchases went through one realtor, who is currently under investigation.  No charges have yet been filed.

London Has More Murders Than New York:  For the first time in modern history, the month-to-month murder tally in London has surpassed that of New York City.  CBS News reports that with both cities having populations of roughly 6 million, 15 people were murdered in London in February compared to 14 in New York.  In March, London logged 22 murders while New York's tally was 21.  London's murder rate has grown by almost 40% over the past three years.  One difference is that most of the murders in London have been stabbings, while most in New York were shootings.  There have been 10 fatal stabbings in London in the last 19 days.  New York City has stringent gun control laws, including at least a three-month wait for authorization.  Perhaps London should implement tough knife control laws.

Update:  London's Mayor, Sadiq Khan announced yesterday that he is implementing strict knife control policies, including increased stop and frisk, to combat the epidemic of stabbings in his city.  

The Association of Los Angeles Deputy Sheriffs has this post with the above title:

Assemblywoman Shirley Weber has introduced AB 931, seeking to criminalize law enforcement's use of deadly force, and allowing prosecution for homicide if a prosecutor disagrees with a deputy's tactical decisions prior to use of deadly force. Her legislation eliminates the long-enshrined standard that such force be "reasonable," and instead replaces it with a standardless term that such force be "necessary" while also disallowing a justifiable homicide defense if tactics prior to the shooting were "grossly negligent."  The bill should be rejected by the state legislature.

Existing law in California allows any person to use deadly force in self-defense or defense of others when it reasonably appears to the person that he or others are in imminent danger of great bodily injury or death; actual danger is not required (Penal Code section 197). If a person acts from reasonable and honest convictions, they are not responsible for a mistake in the extent of danger when other persons would have also been mistaken.

Elsewhere there is a drive to weaken the "qualified immunity" standard that protects peace officers from liability, and to some extent from litigation, when they make reasonable judgments about the limits of the Fourth Amendment that later are deemed to be incorrect.

Who would want to be a peace officer if doing your duty means you can be sued or even prosecuted for misjudging the fuzzy limits of the Fourth Amendment?  And when nobody wants to be a cop any more, "who you gonna call?"

A major reform of the Antiterrorism and Effective Death Penalty Act of 1996 has lain dormant for 22 years, blocked by judicial hostility, bureaucratic foot-dragging, and obstructive litigation.  With the regulations on the books, the litigation to block them resolved, and a new administration in office, this major yet nearly forgotten reform may finally see the light of day.

States are required to provide counsel for indigent defendants at trial and on direct appeal but not in state collateral review (habeas corpus or a substitute).  Based on the report of a committee headed by retired Justice Lewis Powell, Congress offered states a deal.  Set up a system for appointment of state collateral counsel with standards of qualification and adequate funding, and you get an expedited trip through federal habeas corpus.

The federal process can be expedited in these circumstances because qualified counsel have already litigated the major claims in state court.  Between the procedural default rule and the deference standard, if those rules are correctly applied, there should be little for the federal court to decide in most cases.

In the face of judicial hostility wrongly rejecting states' claims to qualify, Congress in 2006 amended the law to vest the initial qualification decision in the U.S. Department of Justice.  AP reports that the application of Texas to be certified is finally moving forward.

The usual suspects are, of course, raising the objection that the present extreme delays are needed to prevent the execution of innocent people.  Most capital cases, however, involve no doubt at all about the identity of the perpetrator.  For those cases where there is such doubt, federal law makes an exception to the successive petition rule for cases of actual innocence.  There are also state exceptions to their successive petition rules, see, e.g., Cal. Penal Code § 1509(d), and executive clemency.

Cal. Supremes Allow Suspect DNA Testing:  By a one vote margin, the California Supreme Court ruled Monday that DNA testing of felony suspects is not a violation of the Fourth Amendment.  Sudhin Thanawala of the Associated Press reports that the court narrowly rejected convicted arsonist Mark Buza's claim that requiring him to allow police to swab his cheek with a Q-tip after he was arrested, but before he was formally charged, amounted to an illegal search.  The ACLU, which filed a brief on Buza's behalf, said the decision was narrowly focused on the circumstances of Buza's case and did not forestall other challenges to the state's DNA testing requirement.  In a dissenting opinion, Justice Goodwin Liu called the DNA collection a "biological dragnet" which would allow collecting samples from law-abiding citizens.      

One-fifth of America's population lives in the Ninth Circuit, and for most federal cases the decision of the Court of Appeals is the last word.  The Supreme Court can only take a small fraction of the cases.  The Ninth Circuit is out in left field and has been since a major expansion of the court allowed President Carter -- and Senator Alan Cranston -- to pack its left wing in the late 1970s.

One would think that fixing this court would be a major priority for a Republican administration, but as I noted here a few months ago, that has not been the case.

The court is authorized 29 active judgeships.  There are seven vacancies, with an eighth coming in August.  Simply counting the Ds and Rs, the court is presently 16-6, so 7 more Rs would bring it to 16-13, decently close to balance.  But it is more complicated than that.  There is considerable variation among the Ds.  Some are reasonable and will rule according to precedent when it is clear, and others are simply searching for an excuse to reach the Politically Correct result.

One very large problem at present is the persistent failure of the Ninth Circuit to grant rehearing en banc to rein in a rogue panel when it issues a clearly wrong decision with a Politically Correct result, such as the one summarily reversed by the Supreme Court this morning.  Although only five currently active judges joined the opinion dissenting from rehearing en banc, I will bet there were others who voted that way without joining the opinion.  (The actual votes are not disclosed, and some judges do not approve of the practice of issuing opinions on these votes.)  If all seven vacancies were filled with persons of sense, we would have a real shot at correcting the Ninth's more egregious panel errors with rehearings en banc.

At present, we have only two nominees for seven, going on eight, vacancies.  Both the White House and the Senate need to put the pedal to the metal to get them filled.  That said, they must be careful to insure that they are filled with people possessed of common sense, integrity, and devotion to upholding the Constitution that the people enacted, not one made up by judges.

Last June, the Ninth Circuit denied rehearing en banc in a qualified immunity case where the police shot (but did not kill) a woman who appeared to be threatening another with a knife and did not obey commands to drop it.  Dissenting from denial of rehearing, Judge Ikuta warned her colleagues:

Rather than ask the correct question--whether Officer Kisela's split-second decision in "the specific context of the case" was "plainly incompetent" or "knowingly violate[d] the law"--the panel opinion defines the "clearly established right" here at the highest level of generality: the right to be free of excessive force. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam). In doing so, the panel opinion adopts the same standard that the Supreme Court has repeatedly overruled.

Judge Berzon, concurring in the denial, confidently stated, "The dissent's principal complaint is that the panel characterized the relevant constitutional right at too high a level of generality. That is incorrect."

Today, the Supreme Court summarily reversed, 7-2, meaning that seven justices not only thought the Ninth Circuit was wrong but concluded it was so obviously wrong that full briefing and oral argument are not needed:

This Court has "'repeatedly told courts--and the Ninth Circuit in particular--not to define clearly established law at a high level of generality.'"

*      *      *

An officer "cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. [Citation.] That is a necessary part of the qualified-immunity standard, and it is a part of the standard that the Court of Appeals here failed to implement in a correct way.

*      *      *

The panel's reliance on [the Ruby Ridge sniper case] "does not pass the straight-face test." 862 F. 3d, at 797 (opinion of Ikuta, J.).

Memo to the Ninth:  To be embarrassed less often, listen to Judge Ikuta more often.  The case is Kisela v. Hughes, No. 17-467.

In other action, the high court took up yet another question on when a prior conviction counts as "violent" for the Armed Career Criminal Act.  The new case involves robbery, defined as theft plus force, when the amount of force is minimal.  It is Stokeling v. United States, No. 17-5554.