April 2019 Archives

The California State Auditor has this report on the California Commission on Judicial Performance. Among the recommendations are to split the CJP into an investigative body to investigate and bring charges and an adjudicative body to determine the charges. That would require an amendment to the state constitution.

Even before announcing that he would seek the Democratic presidential nomination, Joe Biden was busy apologizing. At a Martin Luther King Day speech to Al Sharpton's National Action Network, Mr. Biden said "I haven't always been right" about criminal justice and "white America has to admit there's still a systematic racism and it goes almost unnoticed by so many of us."

Not long ago Mr. Biden publicly defended his role in shaping the Violent Crime Control and Law Enforcement Act of 1994, which funded the hiring of more cops and encouraged more "truth in sentencing" by requiring that prisoners actually serve the majority of their sentences before becoming eligible for parole. That law, Barack Obama's vice president said in 2016, "restored American cities." Mr. Biden, who was chairman of the Senate Judiciary Committee in 1994, reiterated that view in his 2017 memoir.

Gov. Gavin Newsom's blanket moratorium on California's death penalty is a slap in the face to crime victims and their families who have waited years for justice. With the stroke of his pen last month, Newsom singlehandedly undermined our state's democratic values and our criminal justice system.

Vermont Sen. Bernie Sanders said he thinks every U.S. citizen, even the convicted Boston Marathon bomber Dzhokhar Tsarnaev, should be allowed to vote in American elections.

Sanders offered his stance at a CNN town hall Monday when asked whether he thought felons should be allowed to vote while they're incarcerated, not just after their release.

Texas to Execute Hate Crime Murderer:  One of the worst hate crime murderers in the country faces execution in Texas tomorrow.  John King, a habitual felon, was the ringleader in the torture and murder of a black man in 1998.  Ellen McGirt of Fortune reports that on June 7, 1998, John King, Lawrence Brewer, and Shaun Berry (all white ex-cons), lured James Byrd Jr., a black man, into their pickup in the small town of Jasper.  The criminals beat him, pulled down his pants, chained him to the rear bumper, and dragged him down a rural road until his body was ripped apart.  The trio left Byrd's body, minus his head and one arm, in front of a black church.  A more detailed description of the crime is provided in the direct appeal.  King was convicted and sentenced to death in 1999.  Brewer was also sentenced to death and executed in 2011. Berry is serving LWOP for his part in the murder.  The evidence of guilt was overwhelming and included King's incriminating statements.  It is important to note that opponents of the death penalty believe that King should be allowed to keep his life and that his execution amounts to government sanctioned murder.

Tomorrow, the U.S. Supreme Court hears oral argument in Mitchell v. Wisconsin, No.18-6210. Amy Howe has this preview at SCOTUSblog.

Today, April 18, 2019, American journalism brims over with awareness that a prosecutor's decision not to pursue criminal charges does not necessarily mean that the person in question is actually innocent. It is not "exoneration" as that term is widely understood.

Mark the date on the calendar and count the days until the next report that refers to the Death Penalty Information Center's so-called "innocence list" of supposedly "exonerated" former death row inmates as if the people on it actually are innocent. I predict it won't be long. Memory is short, and confirmation bias is powerful.

DOJ: 21.9% of Federal Inmates Are Illegals:  In the face of reports that illegal aliens commit less crime than native-born Americans, such as this one from the Washington Post, a U.S. Justice Department report released earlier this year found that illegals still commit a lot of crimes.  Of the 170,346 criminals serving time in federal prison, 37,242 or 21.9% are illegal aliens.  According to a 2016 PEW Research study, illegals make up 3.3% of the U.S. population.  The DOJ report also found that just under 36% of all defendants charged with federal crimes were illegals.  The Washington Post report also shows that based upon criminal convictions in Texas, illegals commit roughly three times as many crimes as legal immigrants and almost five times as many homicides.  Those who argue that this is the result of racially biased police need to explain how police distinguish illegal from legal immigrants when arresting them for crimes, when the immigration status of suspects is typically not confirmed until after the suspect is in custody.  If all that matters is the aggregate numbers, then significant gender bias is also at play, as over 93% of federal prison inmates are male. 

SCOTUS Denies Gay Murderer's Bias Petition:  The U.S. Supreme Court declined review of a South Dakota murderer's claim that his death sentence is invalid because jurors were biased against gays.  Ariane de Vogue of CNN reports that Charles Rhines admitted killing 22-year old Donnivan Schaeffer in 1992 while robbing the Rapid City donut shop where Schaeffer worked.  Following his conviction, the jury learned that Rhines was gay, which his attorneys argued swayed the jury to sentence him to death.  While most states consider jury deliberations to be private, in its 2017 Pena-Rodriquez v. Colorado ruling, the Supreme Court announced an exception for alleged racial bias.  Rhines asked that the exception also include gay bias.  South Dakota argued that the lower courts were correct in finding that the claim was proceduraly barred because it could have been raised years earlier.  The brutality of the murder seems sufficient to justify the death sentence.  As the South Dakota Supreme Court noted on direct appeal,  Rhines was stealing money from the donut shop office when he heard Schaeffer come in the front door.  Rhines pulled a knife and waited behind the office door until Schaeffer entered, then stabbed him in the stomach.  Schaeffer fell to the floor and began screaming while Rhines stabbed him again in the back, piercing his lung.  As Schaeffer begged for his life, Rhines walked him into a storage room, sat him on a pallet and forced his head between his knees.  Rhines then stabbed Schaeffer in the back of the neck, severing his brain stem.  According to Rhines confession, when Schaeffer continued to shake, he tied his hands behind his back.  The forensic pathologist testified that Schaeffer was probably already dead and the shaking was involuntary.     

The recording of my April 4 Federalist Society Teleforum on Bucklew v. Precythe is now available as podcast here.

Alabama Attorney General Steve Marshall released a statement after the announcement was made. "Tonight, in the middle of National Crime Victims' Rights Week, the family of Pastor Bill Lynn was deprived of justice. They were, in effect, re-victimized by a killer trying to evade his just punishment. This 11th-hour stay for death row inmate Christopher Price will do nothing to serve the ends of justice. Indeed, it has inflicted the opposite--injustice, in the form of justice delayed."

Big Fentanyl Bust at Southern Border:  A joint operation between the U.S. Border Patrol and the San Diego Sheriffs Department has resulted in the arrest of a Fullerton couple attempting to bring 44 1bs. of fentanyl into California Thursday.  Kristina Davis of the San Diego Union Tribune reports that the drug had an estimated street value of $1.5 million.  Drug traffickers now favor fentanyl, which is 50 times stronger than heroin, because it is cheap to produce and more easily smuggled.  The drug is primarily sourced from China and shipped to Mexico to be smuggled across the U.S. southern border.  Conservative estimates by DHS indicate that they catch roughly half of the illegal aliens and smugglers attempting to cross the border.   

Frustrated with Congress and the courts on border security, President Trump has responded by firing his own immigration-enforcement deputies. This political incoherence won't produce better results at the border or break the stalemate in Congress over immigration.

CA Law Proposed to Shorten Parole:  A California Assemblywoman has introduced a bill that would shorten the time that dangerous criminals released from prison are supervised on parole.  Michele Hanisee, President of the Association of Los Angeles Deputy District Attorneys, reports that AB1182 by Assemblywoman Wendy Carrillo, D-Los Angeles, would reduce parole supervision from one year to 180 days for serious felons, including sex offenders.  It would shave a year off the time on parole for high risk criminals released from prison, and it would discharge offenders from parole if they go six months without a violation.  This follows other sentencing reforms aimed at reducing incarceration for habitual criminals including; AB109 which transferred most felons coming out of prison from parole to county probation and eliminated prison time for most property and drug felonies; Proposition 47, which turned a host of felonies into misdemeanors encouraging thieves to continue stealing, and SB1391, which prohibits the worst murderers under age 16 from being tried in adult court, gifting those convicted in juvenile court with release at age 25.  Recent surveys by two liberal think tanks in San Francisco reporting that crime is down in California are fake news.  DAs and Sheriffs are telling us that thousands of property crimes converted to misdemeanors are no longer reported to police and all kinds of theft, burglaries, car break-ins and drug crimes are rising in every community.  As noted in an earlier post, the FBI preliminary crime report for 2018 found that violent crime had increased in 58.3% of the state's largest cities.     

Will SCOTUS Decide Homeless Camping Ban?  In a ruling announced last week the Ninth Circuit denied rehearing en banc of its holding last September which prohibits enforcement of local laws banning the homeless from camping on public property.  As reported by Matt Tinoco from Laist, in Martin v. City of Boise the court said "As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property..."  With reconsideration by the Ninth Circuit off the table, the only avenue left to the plaintiffs is an appeal to the Supreme Court, which the City of Boise hinted to in a statement released after the ruling last week, "[Monday's] ruling does not mean the city ordinances are (unconstitutional). It simply has the effect of forcing the matter to be litigated further. Therefore, the city's camping and disorderly conduct ordinances remain in effect until further clarification can be obtained from the courts; the ruling will not cause us to change our procedures." 

Sherri Lydon, US Attorney for South Carolina, has this op-ed in the WSJ, calling for Congress to amend communications law so that state prisons can jam smuggled cell phones, just as federal prisons do. Inmates use the phones to continue running their crime organizations from within prison.

Deported Murderer Rearrested:  An admitted MS13 gang member deported after serving time for a 2000 murder, was arrested Tuesday on Long Island.  Priscilla DeGregory and Ben Feuerherd of the New York Post report that William Umberto Martinez Chavez was deported in 2017 after serving time for the stabbing murder of a man in Huntington Station.  Chavez, who claims he is no longer affiliated with MS13, faces a maximum of 20 years in federal prison if convicted.  ICE authorities report that for every illegal alien caught at the border, three others enter the U.S. undetected.   

News outlets report 54-year-old Mohamed Fathy Hussein Zayan of Alexandria, Egypt, was arraigned Monday night in Cabell County Magistrate Court on a felony charge of attempted abduction.

According to a criminal complaint, a woman was shopping with her 5-year-old daughter at the Huntington Mall in Barboursville when a man grabbed the girl by the hair and tried to pull her away. Police say the mother pulled out a gun and told the suspect to let go of the child. The man released the child and was later detained by mall security and Barboursville police near a food court.

2nd Conviction in NY Jogger Murder:  Following a mistrial last November, a New York jury returned a unanimous guilty verdict against Chanel Lewis for the 2016 sexual assault and murder of 30-year-old jogger Karina Vetrano.  Katherine Lam of Fox News reports that the victim's body was found in a marsh near her Queens home.  Evidence included a DNA match for Lewis found on the victim's neck, fingernails and cellphone, along with his taped confession to police.  One juror in the retrial told reporters that he felt pressured to find him guilty, but said later that he believed that justice had been served. The NY Legal Aid Society representing Lewis called the conviction a "complete miscarriage  of justice," citing the last-minute discovery of an anonymous letter questioning his guilt, a "race-based dragnet" in collecting his DNA and a coerced confession.   Lewis will be sentenced later this month. 

The Constitution allows capital punishment. [Cites to Glossip and Baze and discussion of founding-era punishment and recognition of capital cases in Fifth Amendment.] Of course, that doesn't mean the American people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives.

That is the strongest statement of the unquestionable constitutionality of capital punishment that I have ever seen in an opinion of the Court, rather than in a concurring or dissenting opinion. It is as emphatic as the absolute statement of Justice Hugo Black (who was fond of absolute statements) nearly half a century ago in McGautha v. California.

The U.S. Supreme Court this morning rejected the claim of Russell Bucklew that his unusual medical condition required the state to execute him by the never-yet-used method of nitrogen hypoxia rather than the single-drug lethal injection method of a massive overdose of a barbiturate, the optimum widely-used method for most cases.