Texas Executes Cop Killer: 61-year-old Robert Jennings was put to death Wednesday for the 1988 murder of a 24-year-old Houston police officer during a robbery. The Associated Press reports that Jennings won a stay in 2016 to review claims that he suffered brain damage, had a troubled childhood and that he was remorseful for the killing, but his request for additional delay this year was turned down. Jennings, a twice convicted robber, began a crime spree shortly after his parole in May 1988 which included 10 robberies. In July of that year he entered an adult bookstore to rob it when he confronted Officer Elston Howard, who was in the process off arresting the owner on a pornography charge. Jennings shot the young officer twice in the head, then shot him two more times after he lay bleeding on the floor. Jolie McCullough of the Texas Tribune reports that Jennings expressed remorse for the murder to the officer's family prior to his execution. The appellate review of his conviction and sentence, where his guilt was never at issue, took longer than Officer Howard had lived.
January 2019 Archives
Crime Down in LA Last Year: Mayor Eric Garcetti announced Monday that crime in Los Angeles dropped in 2018. CBS Los Angeles reports that violent crime was down by 4.2% and property crime dropped 1.8% compared to 2017. LAPD Chief Michael Moore credited the drop to increased patrols and his department's anti-gang program. Because roughly half of the murders in LA are gang-related, officials believe that gang interventions contributed to 23 fewer homicides last year. It is important to note that some unknown number of property felonies valued at $950 or less were converted to misdemeanors in 2014 by Proposition 47. Unlike felonies, misdemeanors often go unreported, and therefor are not counted by police agencies.
Barry Latzer, Professor Emeritus of Criminal Justice, John Jay College of Criminal Justice, CUNY, has an article in the City Journal with the above headline. The subhead is, "High enough, from what we know, to take measures to secure our borders."
Critics of illegal immigration argue that the crime rates of illegal aliens are higher than those of the American population generally, or at least of legal immigrants. The New York Times has denied that illegals commit more crime than other groups, but the paper bases its claim on a Cato Institute study that relies on questionable data. In fact, nobody can calculate with accuracy the crime rates of illegal immigrants or any other social group unless they have reliable data on the size of the group, and we simply don't know how many illegal aliens there are in the United States.* * *The crime of homicide provides the most accurate measure, though, because a much higher proportion of murders are solved by police--around 70 percent--than for any other crime; by contrast, fewer than 15 percent of property offenses lead to an arrest. As a result, we have much more accurate demographics for murderers than for, say, burglars. The indication that illegal aliens commit disproportionate numbers of murders is corroborated by crime rates, shaky though they may be, for 2014 and 2015--the two years for which we have population estimates from Pew and DHS. In 2014, Texas illegal-alien murder-arrest rates were 4.99 per 100,000--56 percent higher than the rates for all other apprehended murderers (3.2 per 100,000). In 2015, the rates were 35 percent higher for illegal aliens (4.2 per 100,000, versus 3.1 per 100,000).* * *
Continue reading Do Illegal Aliens Have High Crime Rates?.
Nominations can no longer be filibustered since then-Majority Leader Harry Reid invoked the "nuclear option" five year ago. They can still be slowed down, though, because anything less than unanimous consent requires 30 hours of debate per nomination, and the Democrats are now requiring that for every nomination whether they have anything against the nominee or not.
That is an "uncommonly silly" rule, to borrow Justice Stewart's famous term. Aside from Supreme Court Justices and cabinet officers, no nomination needs more than an hour of floor debate, if any at all. Hugh Hewitt writes in the WaPo that current Majority Leader Mitch McConnell is on the verge of dumping that rule the same way that Sen. Reid dumped the filibuster. Maybe that should be called the "fallout option."
Hopefully this will expedite nominations. It is quite uncalled for that so many highly qualified people have to put their lives on hold while the Senate dithers.
President Trump renominated a bunch of judicial nominees Tuesday, a step made necessary by the election of a new Congress. Conspicuously missing are the three California nominees to the Ninth Circuit: Patrick Bumatay, Daniel Collins, and Kenneth Lee. They are caught up in a "blue slip" dispute with California's senators. Gregg Re has this report for Fox News.
From the California Supreme Court today in People v. Colbert, S238954:
In approving Proposition 47, the 2014 voter initiative that reclassified certain theft-related and drug-related felonies as misdemeanors, voters created a new misdemeanor offense called "shoplifting." (Pen. Code, § 459.5.) Shoplifting is defined as the act of entering a commercial establishment with intent to steal property while the establishment is open during regular business hours, where the value of the property taken or intended to be taken is $950 or less--an act that had formerly been punishable as felony burglary. (Ibid.; see id., § 459.) This case presents a question concerning the line separating shoplifting from burglary: If a person enters a store during regular business hours but then proceeds to a private back office with intent to steal therefrom, which crime has he or she committed? We conclude that entering an interior room that is objectively identifiable as off-limits to the public with intent to steal therefrom is not shoplifting, but instead remains punishable as burglary.
Opinion by Justice Kruger, unanimous.
California's new Governor has taken the criminals' side against the victims on nearly every major criminal justice issue in recent years, so it was a pleasant surprise to learn that he blocked the parole of San Diego cop killer Jesus Cecena. Mark Saunders has this story for KGTV (ABC 10, San Diego).
Cecena was convicted of killing SDPD officer Archie Buggs in 1978, after shooting the 30-year-old officer four times during a traffic stop in Skyline before killing him with a final shot at point-blank range, according to the DA's office.
So why wasn't he sentenced to death? He was 17 at the time, and California law has precluded the death penalty for under-18 murderers throughout the modern era (i.e., post-Furman). Life without parole was available, though, so at least we can rest easy he will never be released, right?
No, the California Legislature provided for going back and resentencing those old LWOP cases, and Cecena's sentence was reduced to seven-to-life, making the 57-year-old eligible for Youthful Offender Parole. Really. And the Parole Board (or whatever that oft-renamed body is called this week) granted it.
Continue reading Cal. Gov. Blocks Cop Killer's Parole.
SCOTUS to Review NY Gun Law: The U.S. Supreme Court has agreed to review a unanimous Second Circuit ruling which held that New York City's harsh gun restrictions comply with the high court's 2008 Heller v. District of Columbia decision. Adam Liptak of the New York Times reports that the Second Circuit ruling rejected claims made in a lawsuit by the New York Rifle and Pistol Association, that by prohibiting lawful gun owners from taking their unloaded and locked firearms to second homes, out of city shooting ranges, competitions or anywhere else, the law violates Heller and the Second Amendment. The article suggests that by agreeing to hear the appeal after denying review of gun cases for nearly a decade, the Court, with the recent confirmation of a new more conservative justice, may be poised to expand Heller. Last year, Justice Clarence Thomas noted in a dissent to denial of a Second Amendment case that "The right to keep and bear arms is apparently this court's constitutional orphan." On Tuesday, NY Mayor Bill de Blasio told reporters that his city would vigorously defend the gun restrictions.
Congress enacted the Crime Victims Rights Act, 18 U.S.C. §3771, in 2004, providing among other rights for victims of federal offenses "the right to proceedings free from unreasonable delay." Two years later, Congress amended §3771 to extend its protection to federal habeas corpus proceedings in state criminal cases. It did not occur to Congress to protect victims from unreasonable delay by the United States Supreme Court on certiorari review of state cases because that had never been a problem.
It is now.
Continue reading Why Did SCOTUS Sit on 2 Capital Cases for a Year?.
Illegal a Suspect in Four Nevada Murders: Wilbur Ernesti Martinez-Guzman, 19, was arrested Saturday for the murders of four people in northern Nevada. Samuel Chamberlain of Fox News reports that the killing began on June 10 when the body of Connie Koontz, 59, was found in the small town of Gardnerville. Three days later the body of 74-year-old Sophia Renken was found in her home about a mile away. On January 16, the bodies of an elderly couple, Gerald and Sharon David, were found in their home in south Reno. All four victims were shot and their homes had been burglarized. A tip led police to Guzman, an illegal alien living in Carson City. The Washoe County Sheriff told reporters that "we feel confident we have the evidence to link him to all four homicides."
Debates over crime today frequently involve issues of race. In these debates, many progressives regard it as taboo to suggest that "disparities" in arrests, prosecutions, incarceration, or even school discipline might be largely the result of differences in offending rates rather than unequal treatment by authorities. Coleman Hughes has this op-ed in the WSJ reminding us that Martin Luther King (whose birthday is observed six days late on Monday) did not regard it as taboo.
If conservatives whitewash King's opinions on economics and foreign policy, then progressives whitewash his views on race. King discussed many topics that now are considered taboo, if not racist, on the left. Consider the problem of violence in the black community. King lamented "frequently and consistently" seeing "brutal acts and crimes by Negroes against Negroes." "In many a week in Chicago," he observed in 1966, "as many or more Negro youngsters have been killed in gang fights as were killed in the riots there last summer." A glance at today's homicide statistics in Chicago shows that little has changed since King made that observation, yet such violence gets scant attention from racial-justice activists.
King also highlighted counterproductive behavioral patterns in the black community--the third rail for today's racial activists. The current view among progressives is that cultural self-criticism is noble when whites do it but "victim blaming" when blacks do it. In contrast, King held that regardless of racial identity, "one of the sure signs of maturity is the ability to rise to the point of self-criticism," as expressed in a 1960 address.
The final goal King staked for his Southern Christian Leadership Conference was to "reduce the cultural lag" in the black community. And he was clear about the nature of this lag. "Some Negroes have become cynical and disillusioned," he said in 1960. "So many have used their oppression as an excuse for mediocrity. Many of us live above our means, spend money on nonessentials and frivolities, and fail to give to serious causes, organizations, and educational institutions that so desperately need funds. Our crime rate is far too high."
CA Bail Law Put on Hold: A California law (SB10) which would eliminate cash bail will not go into effect until November 2020 if it is approved by state voters. Bob Egelko of the San Francisco Chronicle reports that a referendum on the law proposed by the bail bond industry has qualified for California's next general election ballot. SB10 was signed into law by Governor Jerry Brown last year and would have taken effect this October. It would allow most defendants to be released on their own recognizance if they are not being charged with a serious or violent crime and do not have a recent conviction for a serious or violent crime. Defendants who do not meet this criteria would be held without bail. In a strange twist, the ACLU and most state law enforcement leaders oppose the law.
Texas Baby Killer Wins Stay: A Texas man scheduled to be executed Tuesday for the brutal 2008 murder of his girlfriend's baby daughter, won a last-minute stay from the Texas Court of Criminal Appeals Monday. Jolie McCullough of the Texas Tribune reports that the court's majority ordered a lower court to review defendant Blaine Milam's claims that he is too mentally retarded to qualify for execution and that bite mark evidence introduced at trial may have been invalid. Milam was found guilty of the December 2008 sexual assault and brutal murder of 13-month-old Amora Carson. The medical examiner found 24 human bite marks on the baby's body, which were linked to Milam. The science that supported that link is currently being challenged. Milam also benefited from the Supreme Court's 2017 decision in Moore v. Texas, which found that the Texas standards for determining mental retardation were outdated. Prosecutors argued that questions about the bite marks were settled at trial and that other significant evidence convinced the jury of Milam's guilt. An August 17, Federal District Court decision to deny Milam relief on habeas corpus provides details about the crime and the defendant's claims.
CNN has this partial transcript of today's Senate Judiciary Confirmation for Attorney General nominee William Barr. Here is Senator Grassley's question on criminal justice "reform" (i.e., softening):
Continue reading AG Confirmation Hearing.
The U.S. Supreme Court took a step back from the brink of irrationality in sentencing today in Stokeling v. United States, No. 17-5554. The vote was a surprisingly close 5-4, and not strictly on the "usual" lines.
Convicted criminals should be sentenced primarily according to the crime they committed and the crimes they have committed before. Other relevant factors should have minor weight, and irrelevant factors should have no weight. That is the essence of fairness in sentencing.
Among the irrelevant factors that should have no weight are the minor quirks in the law of the jurisdiction where the prior offense was committed. Yet when it comes to sentencing federal convicts with prior state convictions, deciding what constitutes a "violent felony" for the purpose of the Armed Career Criminal Act (ACCA) has proven to be a surprisingly difficult problem. Sometimes the distinctions threaten the fairness and even the rationality of federal sentencing. Defendants who committed similar crimes in different states can be sentenced very differently because one state defines the crime in a slightly broader way so that a person could theoretically be convicted under the statute for an act that is not actually violent, even though the actual defendant's actual act was very violent.
Is robbery a violent felony? Of course. As originally enacted, the ACCA's "three strikes" provision included robbery by name, with a definition mirroring the common-law definition, "any felony consisting of the taking of the property of another from the person or presence of another by force or violence." "Force" in this definition must necessarily be broader than force that causes personal injury because otherwise it would be redundant with "violence," and the common law did define robbery in a broader sense.
In 1986, Congress amended the statute in an amendment titled "Expansion of Predicate Offenses for Armed Career Criminal Penalties." Did this "expansion" amendment actually contract the definition so severely that robbery convictions from most states would no longer be included? It is remarkable that such a question would even reach the Supreme Court and even more remarkable that the Court was narrowly divided on it.
Continue reading Restoring Rationality to Recidivist Sentencing.
The U.S. Supreme Court today brushed aside Thomas Goldstein's clever move to place the legitimacy of Matthew Whitaker as Acting Attorney General before the court through a normally routine motion to substitute a successor for a party appearing in his official capacity. In Michaels v. United States, No. 18-496, a petition challenging the federal ban on possession of firearms by convicted felons, Goldstein moved to substitute Rod Rosenstein, rather than Matthew Whitaker, for departed Attorney General Jeff Sessions, the nominal lead defendant.
No dice. In today's order list, the Court denied the motion and the certiorari petition without comment or noted dissent.
The question will likely be moot very soon. William Barr's confirmation hearing is tomorrow. His prepared remarks have been released. Sadie Gurman has this story in the WSJ. The part about the Mueller probe will be the main topic of conversation amongst the chattering classes. I am more interested in his priorities for DoJ generally.
First, we must continue the progress we have made on violent crime while, at the same time, recognizing the changes that have occurred since I last served as Attorney General. Then, the Nation was suffering from the highest violent crime rate in our history. My priority was to protect the public and attack those soaring crime rates by targeting chronic violent offenders and gangs. The crime rate has substantially fallen since 1992. The recently passed First Step Act, which I intend to diligently implement if confirmed, recognizes the progress we have made over the past three decades. Like Attorney General Sessions, I believe we must keep up the pressure on chronic, violent criminals. We cannot allow the progress we have made to be reversed. As Attorney General, I will continue to give priority to the joint efforts with our state and local partners to combat violent crime.
That sounds like the "law-and-order President" has indeed given us another law-and-order Attorney General. While he tips his hat to the Faux Pas Act, the main point is a determination to continue the progress against crime that the get-tough policy of his prior tenure helped bring about. "We cannot allow the progress we have made to be reversed." Bull's-eye. The acknowledgement to departed AG Sessions, a man unfairly tarred and largely right on the main issues, is a classy touch and a good sign.
It's a good thing former Majority Leader Harry Reid nuked the filibuster for executive nominations.
From the Ninth Circuit en banc today in United States v. Depue, No. 15-10553, unanimous opinion by Judge Berzon:
This appeal is, as Yogi Berra did or did not say, déjà vu all over again.1 We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc). We reaffirm today this distinction between waiver and forfeiture.
Continue reading Waiver, Forfeiture, Appeal, and Sentencing Guidelines.
On December 29, 2017, the U.S. Court of Appeals for the Ninth Circuit overturned the conviction of double murderer/rapist Francis Hernandez in a split decision. "Joining" Judge Reinhardt's opinion to form a majority was Judge Harry Pregerson, who had died a month earlier. See this post. Judge Jacqueline Nguyen dissented.
Judge Reinhardt died a few months later.
The case was reheard by a reconstituted panel, with Judges Kim Wardlaw and Milan Smith drawn to replace the departed judges. A new opinion was filed today upholding the district court's denial of habeas relief. Although the trial attorney was deemed ineffective for not pursuing a diminished capacity defense, that omission was not prejudicial because the case against the defendant was so overwhelming that there is no reasonable probability it would have succeeded.
So to avoid being labeled ineffective, the defense lawyer has to make the patently meritless mental defense. You have to throw the "Hail Mary pass" when it's the only play you have.
Judge Reinhardt's theory was that the standard for prejudice in the guilt phase of a trial (as opposed to the penalty phase of a capital case in a state with a single-juror-veto system) is whether there is a reasonable probability that a single juror would have bought the argument. That theory is conspicuously absent from today's opinion. That was the principal point of CJLF's amicus brief in the case.
Continue reading Ninth Circuit Overturns "Ghost Judge" Decision.
In 2016, the U.S. Supreme Court decided Birchfield v. North Dakota on the issue of warrant requirements for tests of apparently intoxicated drivers. See Kym's posts here and here. Today the high court granted certiorari to review a decision of the Wisconsin Supreme Court in Mitchell v. Wisconsin, No. 18-6210. From the state court decision:
¶2 Gerald Mitchell was convicted of operating while intoxicated and with a prohibited alcohol concentration, based on the test of blood drawn without a warrant while he was unconscious, pursuant to Wis. Stat. § 343.305(3)(b) (2013-14). Mitchell contends that the blood draw was a search conducted in violation of his Fourth Amendment rights.¶3 We conclude that Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin's roads and drinking to a point evidencing probable cause of intoxication. Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under Wis. Stat. § 343.305(4), to withdraw his consent previously given; and therefore, § 343.305(3)(b) applied, which under the totality of circumstances herein presented reasonably permitted drawing Mitchell's blood. Accordingly, we affirm Mitchell's convictions.
The case will likely be argued on the April calendar and decided near the end of the term in June or thereabouts.
The Court also took up two more cases under the problematic federal law on crime and guns, 18 U.S.C. §924. Quarles v. United States, No. 17-778 dives again into what is "burglary" for sentencing recidivist criminals, given the varying definitions under which a defendant may have been convicted of a prior burglary in state court. Does it matter whether the defendant decided to steal something before or after he broke into the building?
Rehaif v. United States, No. 17-9560 concerns the mental state of a defendant accused of violating the prohibition on possession of a firearm by an illegal alien. What does it mean to "knowingly" violate this law? Must the defendant only know he possesses a gun or must he also know he is illegal?
In addition to the criminal cases, the Court took up a crime-related civil case, McDonough v. Smith, No. 18-485. The case concerns the statute of limitations for civil rights suits under 42 U.S.C. §1983 based on fabrication of evidence.
I felt a great disturbance in The Force.
This article by Stephanie Mencimer looks at Alex Berenson and his book Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence.
The book was seeded one night a few years ago when Berenson's wife, a psychiatrist who evaluates mentally ill criminal defendants in New York, started talking about a horrific case she was handling. It was "the usual horror story, somebody who'd cut up his grandmother or set fire to his apartment--typical bedtime chat in the Berenson house," he writes. But then, his wife added, "Of course he was high, been smoking pot his whole life."
Berenson, who smoked a bit in college, didn't have strong feelings about marijuana one way or another, but he was skeptical that it could bring about violent crime. Like most Americans, he thought stoners ate pizza and played video games--they didn't hack up family members. Yet his Harvard-trained wife insisted that all the horrible cases she was seeing involved people who were heavy into weed. She directed him to the science on the subject.
We look back and laugh at Reefer Madness, which was pretty over-the-top, after all, but Berenson found himself immersed in some pretty sobering evidence: Cannabis has been associated with legitimate reports of psychotic behavior and violence dating at least to the 19th century, when a Punjabi lawyer in India noted that 20 to 30 percent of patients in mental hospitals were committed for cannabis-related insanity. The lawyer, like Berenson's wife, described horrific crimes--including at least one beheading--and attributed far more cases of mental illness to cannabis than to alcohol or opium. The Mexican government reached similar conclusions, banning cannabis sales in 1920--nearly 20 years before the United States did--after years of reports of cannabis-induced madness and violent crime.
None of this is surprising to those of us who have followed the legalization debate and the misrepresentations of harmlessness by the legalization lobby. What is surprising is where this article is published.
Continue reading A Not-So-Harmless Drug.
The WSJ has this editorial with the above title.
The Senate confirmed 77 stalled nominees--a collection of ambassadors, U.S. attorneys or other non-controversial picks--by voice vote on Jan. 2. But thanks mostly to Democratic objections, the upper chamber returned to the White House 384 nominees it failed to confirm in the 115th Congress. That includes some 70 judicial nominees.
The White House will now have to renominate these men and women, assuming they haven't given up in frustration. Mark Greenblatt was nominated to be inspector general of the Ex-Im Bank in September 2017, 16 months ago. The Banking Committee approved him three months later; he's still waiting for a floor vote. Burlington Stores exec Janet Dhillon, the nominee to lead the Equal Employment Opportunity Commission, has been waiting 18 months.* * *The White House was rightly criticized for its slow start with executive-branch nominations, but the main problem long ago became the systematic Democratic effort to prevent President Trump from filling out the government. First, Democrats take as much time as possible tying up nominees in committee. Once even non-controversial nominees get to the floor, Democrats then object to a quick voice-vote confirmation and demand a cloture vote that requires 30 hours of floor debate.
We at C&C are particularly interested in the much delayed nominations to the Sentencing Commission. I did not find any mention this year on the White House website, so evidently they have not been renominated yet.
AUSA Timothy Harker has this article in the journal of the NAAG Training & Research Institute:
More than thirty years of law review articles insist that overzealous prosecutors, intentionally or negligently exceeding the scope of their legitimate authority, present a systemic threat to the very foundation of our criminal justice system ...In reality, there is virtually no empirical support for these propositions. On the contrary, the available evidence supports the conclusion that prosecutorial misconduct occurs with admirable infrequency and the nation's federal, state, and local prosecutors perform their daily tasks with an impressive fidelity to their constitutional and ethical responsibilities. The vitriol with which they are attacked is unwarranted.
Eight years ago, I wrote in this post:
The sentence a convicted defendant receives should depend on what he did and what he has done before, not which judge he draws. The Sentencing Reform Act of 1984 was the product of a rare bipartisan consensus on criminal law that judge-to-judge disparity had gone too far and needed to be reined in. The Supreme Court threw out the key element of that reform, mandatory sentencing guidelines, in the Booker case in 2005. We didn't need to be clairvoyant to predict what would happen.
The post reported on a study that sentences were indeed increasingly dependent on which judge was assigned to the case.
Today the United States Sentencing Commission issued a report titled Intra-City Differences in Federal Sentencing Practices. Among the key findings:
In most cities, the length of a defendant's sentence increasingly depends on which judge in the courthouse is assigned to his or her case.
This is outrageous, and it deserves a vigorous response. The correct response is to reinstate the system of mandatory guidelines. Congress got it right in 1984. To the extent that the system impinged on the right to jury trial, the answer was and is to tweak the system so that juries find the disputed facts that fall within the Sixth Amendment right. The Supreme Court in Booker used a meat-axe where a scalpel was called for, replacing the system Congress enacted with a different one. Congress needs to restore the original plan.
Some people are so obsessed with reducing prison population that they view everything on that scale and don't care about details like the basic fairness of treating similarly situated people the same. So here, once more with feeling, is an offer of compromise. In return for reinstating the mandatory system of guidelines, let us repeal all statutory mandatory minimums.
The guidelines, with appropriate appellate review of unwarranted downward departures, will substitute for the minimums. Because the Sentencing Commission will review and revise them from time to time, they will not suffer from the long-standing problem of a legislature enacting a harsh statute in response to a specific crime and then forgetting about it.
The Ninth Circuit Court of Appeals today decided United States v. Torres, No. 15-10492, involving these two provisions:
"[T]he right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II
and"It shall be unlawful for any person --* * *(5) who, being an alien--(A) is illegally or unlawfully in the United States* * *to ... possess in or affecting commerce, any firearm or ammunition ...." 18 U.S.C. §922(g).
Does 18 U.S.C. §922(g)(5)(A) violate the Second Amendment, at least as applied to an illegal alien who has lived in the United States for a substantial time? Torres grappled with that question and discussed the variety of approaches taken in the other circuits.
Continue reading Illegal Aliens and the Right to Keep and Bear Arms.
The U.S. Supreme Court declined to take up two cases over written dissents. Hester v. United States involves a question of whether the right to jury trial extends to the facts needed to impose a restitution fine. Lance v. Sellers involves a Georgia Supreme Court decision in a capital case on the "prejudice" prong of Strickland v. Washington, i.e., that no relief is available because the case was so overwhelming that there is no reasonable probability that it would have come out differently if the jury had been presented with the omitted evidence.
Amy Howe describes these two cases further in her report on the day's SCOTUS activities.
The U.S. Supreme Court issued two summary reversals today. These are cases where the decision of a lower court is so clearly wrong that no merits briefing or oral argument is needed. No dissent is indicated in either case.
Both cases involve rules limiting the ability of federal courts to second-guess actions of state officials based on rules that were not established at the time of the action. Both are decisions of circuits divisible by three. This movie has played on the Supreme Court Channel more times than the Harry Potter movies have played on cable TV.
In Shoop v. Hill, No. 18-56, the Sixth Circuit accepted a collateral attack on a 1993 decision of the Ohio Supreme Court because it was inconsistent with the Supreme Court's 2017 decision in Moore v. Texas. That was "plainly improper" under an Act of Congress that limits such collateral attacks to decisions that were, at the time, "contrary to ... clearly established Federal law."
In City of Escondido v. Emmons, No. 17-1660, the Ninth Circuit denied qualified immunity to two police officers who responded to a domestic violence call and required them to go to trial. It was uncontested on appeal that the officers had probable cause to arrest Marty Emmons, but the claim was that one of them used excessive force when he tackled Emmons after Emmons "brushed past them," although there was no apparent injury.
Why did the Ninth rule against the officer who used no force at all? Remarkably, it didn't say. Isn't some explanation in order before reversing a judgment as to one party? The Supreme Court thinks so and finds the absence "quite puzzling." As to the tackling officer, the Ninth committed the very frequent error of defining the "clearly established law" at too high a level of generality. How many times does the Supreme Court have to reverse on this basis before the courts of appeals clean up their acts?
On Friday, the U.S. Supreme Court waded once again into the murky waters of a vague definition of "crime of violence." The high court decided to review the case of United States v. Davis, No. 18-431. The case involves 18 U.S.C. § 924(c), which imposes mandatory minimum sentences on persons who commit a "crime of violence or a drug trafficking crime" while using or carrying a firearm. Paragraph (3) of that subdivision provides:
(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and--(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Supreme Court has long held that similar language in statutes relating to prior offenses refer to categories of offenses and not the defendant's actual conduct in committing the crime. This is called the "categorical approach." The Court was motivated in part by the practical difficulties of determining the particular facts of long-ago crimes. More recently, the Court has declared language such as subparagraph (B) "void for vagueness" in two prior offense statutes. See Johnson v. United States, 135 S. Ct. 2551 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
As the Eleventh Circuit noted October 4 in Ovalles v. United States, No. 17-10172, if the categorical approach applies, then under Johnson and Dimaya "the clause is doomed."
But should the "categorical" interpretation of the statute be reconsidered in light of the principle that if two interpretations are plausible but only one is constitutional, courts should adopt the constitutional one? If so, is a "case-specific" interpretation of this statute plausible?
Continue reading Violence, Vagueness, and Avoidance.
Illegal Charged With Rape: A previously deported illegal alien has been charged with raping a young girl in Alabama. Johathan Hardison of WSFA News reports that Amancio Bentancourt Martinez, 27, served time in prison for cocaine trafficking prior to his deportation in 2015. He was re-arrested in Shelby County last November as a suspect, and was charged with 1st degree rape last Wednesday.
Nevada Murderer Found Dead in His Cell: A twice convicted murderer whose death sentence was called off twice was found dead in his Nevada prison cell Saturday. Chiara Giordano of the Independent reports that Scott Dozier had repeatedly said that he wanted to be executed and asked that his appeals be dropped. In spite of this his execution had been postponed twice since 2007 by courts responding to claims that the state's lethal injection process might cause pain. Dozier, a drug dealer, was convicted of the 2002 murder and mauling of a 26-year-old man in Phoenix and the robbery and dismembering of a 22-year-old man in Las Vegas the same year. The Associated Press reports that Dozier apparently hung himself.
To Black Activists, Most Black Lives Don't Matter: The drive-by murder of a seven-year-old black girl in Houston on December 30, by an initially-reported white shooter, sparked hate crime allegations, blanket coverage by the news media and a $100,000 reward offer by anti-cop activist Shaun King for anyone who located him. In today's City Journal, Manhattan Institute scholar Heather MacDonald reports that after police determined that the shooters were actually black gang members, King claimed that his outrage was not about race. MacDonald notes that "It's worth remembering, though, the many other black children who have
been victims of drive-by shootings without leading King to launch a
national crusade" before reciting a long list of black children recently killed by black criminals. "If Shaun King and other Black Lives Matter activists really want to save
black children from the trauma of urban violence, they should put their
efforts into rebuilding inner-city culture--above all, by revalorizing a
married father as the best gift a mother can give her child. Fantasies
about white violence against `black bodies' are a distraction from what
is actually happening on American streets,"
Murders Way Up in DC: Homicides increased by about 40% in the nation's capital last year. Melissa Howell of WTOP reports that there were 534 shootings in DC and the police chief told reporters that 4 of every 10 shooters had priors for gun crimes. While murders were down in neighboring counties, they climbed from 116 in 2017 to 160 in DC last year.
