Recently in Cases Category

Last week, we filed on behalf of the Legion of Valor of the United States and the Criminal Justice Legal Foundation an amicus brief in the Stolen Valor Act case before the Supreme Court, United States v. Alvarez, No. 11-210.  There are six other amicus briefs on our side as well, all available at the ABA's case page.

Our brief begins with an argument that the Act should be understood as prohibiting only intentional lies about military medals.  That position is in keeping with our view on the importance of a mens rea element in criminal statutes, and it also strengthens the statute against constitutional attack.

In the second part, we discuss the harm done by the fakers.  This part is relatively short to avoid excessive overlap with other briefs in the case.  We also include a short discussion of viewpoint neutrality, distinguishing R.A.V. v. St. Paul.

In Part III, we take head-on the argument that the "crush video" case, United States v. Stevens, subjects all speech to strict scrutiny, even bald-faced lies, unless it can be shoehorned into one of the specific historical categories listed in that decision.  This may turn out to be the crux of the case.

The last part is addressed to Chief Judge Kozinski's colorful opinion about how horrible it would be if the government banned every sort of personal, trivial lie.  Of course it would, but the problem there is not one of excessive intrusion on speech but of excessive intrusion into private matters, whether they be speech or conduct.  If some sort of government interest requirement is necessary for a statute banning an outright lie, okay.  It doesn't matter for this case what the threshold is, because this statute would pass any test that might be used.  The panel majority in this case conceded that the statute serves a compelling government interest, the highest standard, and another panel of the Ninth Circuit so held in a later case upholding another subdivision of the same statute.

The transcript of oral argument in Davis v. United States is here.  On a quick read, it looks like a win for our side.  Counsel for Davis got peppered with questions more than counsel for the government, which has been shown empirically to have a negative correlation with success.

A Wall Street Journal report out this afternoon relates:

The Federal Deposit Insurance Corp. sued three former executives of the failed Washington Mutual Bank, along with two of their wives, in a lawsuit filed on Wednesday.

The FDIC is seeking $900 million in damages for alleged gross negligence and other failures by the former executives in the run up to WaMu's collapse in September 2008, the largest-ever U.S. banking failure.

Gross negligence my foot.  The question is: why isn't this a criminal case?  Perhaps it will be in time.  On the other hand, the Holder Justice Department doesn't seem to be cooking with a lot of gas; if my most prominent recent case had ended with 284 not guilty verdicts out of 285 counts, I too might be mumbling instead of acting.

I did a number of white collar cases in my days in the USAO, and the defense was always that it was a poor, but not crooked, business decision, combined with bad luck and "sloppy bookkeeping."  I was always skeptical then, and I confess I remain skeptical now, that people manage to enrich themselves by hundreds of millions of dollars by being "sloppy."

Yesterday the Supreme Court of Idaho released its opinion in the case of State v. Windom, 2011 WL 891318. The facts of the case are gruesome and center on the murder of Judith Windom by her mentally disturbed son.  From an early age, Ethan Windom was fascinated with serial killers and death.  He was an avid follower of the thriller, American Psycho.  For years he dreamed of committing murder and finally indulged in that fantasy on January 24, 2007, brutally killing his mother while she slept.  At trial for murder, the inevitable question arose: what's wrong with Ethan?  Four mental health experts all came to different conclusions and Ethan was convicted of Murder 2nd.  At sentencing the trial judge had to determine what was the appropriate sentence for a crime so heinous and senseless but for a defendant so young and disturbed.   The trial court elected for a fixed life term.

Legal scholars spend lots of time debating the definition and applicability of the various culpable mental states.  There's even an intriguing new paper out that suggests the influential Model Penal Code formulations might be wrong. But sometimes what constitutes depravity is just so obvious:

In 1986, appellant Paulos, f/k/a Paul Lindberg, was convicted of second-degree murder for strangling a woman to death after a sexual encounter. State v. Lindberg, 408 N.W.2d 589, 591-92 (Minn.App.1987). After killing the woman, Paulos put a cigarette lighter in her rectum and her keys in her vagina. Id. at 591. He spray painted her body green, wrapped her body in a rug, placed her body in his car, drove to a parking lot, and dumped her body beneath two trailers parked in the lot.

Paulos v. Ludeman, 2011 WL 691863 (Minn.App., 2011) 

For reasons that are unclear in the opinion, Paulos didn't serve a long prison term for this heinous crime and the state had him civilly committed 1997.  Seeking release in 2009, Paulos claimed that he posed little risk to society.  The judicial appeal panel didn't agree and neither did the Court of Appeals of Minnesota.

"Root causes," like "smart on crime," is one of those phrases you want to be on the lookout for.  Not to put too fine a point on it, what it means is that someone, usually affiliated with the press and/or the academy, is about to put out a "report" or a "study" full of odd-sounding, multisyllabic words and phrases.  The point of beginning that way is to make you doubt your common sense.  Starting from there, the chances are better that you can be sold a real lallapalooza.  Some of the sorts of things that the Left tries to palm off in this fashion are, for example, the notion  that when fewer criminals are in prison, we will have less crime.  (A New York Times editorial actually said this). 

That this is counterintuitive, not to mention counter-factual, is  --  you will be told  --  most certainly not a sign that Those In the Know have intellectualized themselves into the shape of a pretzel.  It's the opposite:  a sign that you, the skeptic, are probably one of Those People With Big Hair, a/k/a the Unwashed Masses.  Your grandpa might even be in the Rotary, heaven forbid.

But then, reality strikes.  A story will come along  --  an inconvenient truth, one might say  --  to remind you that what you had thought all along was driving the criminal train (to wit, greed) actually is driving it.  Thus I bring you today's gem from the Washington Post.  If anyone can find the defendant in this story who was overborne by the need to escape poverty, or poor schooling, or lack of opportunity, or childhood abuse, or the brain syndrome du jour, etc., please let me know in the comments section.  To my less sophisticated mindset, it looks less like the downtrodden than like a bunch of greedy, dishonest businessmen in bed with a bunch of even greedier and more dishonest local politicians.  A person lacking Ivy League Sophistication might be tempted to say that an episode like this is caused by......uh.............well......................dishonesty and greed!

Oh no!  Can't be that!  Please, somebody, get me some "root causes."  Fast!

 

For several days after the Tucson massacre and the grievous wounding of Rep. Giffords, the airwaves and some of the mainstream media  --  in particular the New York Times  --   were filled with evidence-free but poisonous accusations that conservative "rhetoric" was the underlying cause.  Paul Krugman of the Times was a particularly vicious, but unfortunately not a lonely, source of this sort of thing.

In the days since, it has become clear that political debate,  whether heated or not, and whether coming from conservatives or not, had zip to do with the shootings.  This revelation has had the healthy effect of quite visibly putting the lie to the left's Smear Machine.  A reliably liberal op-ed columnist for the Times, Charles Blow, now commendably admits what's been going on, even while conspicuously declining to single out Krugman by name.  As Blow notes,

Immediately after the news broke, the air became thick with conjecture, speculation and innuendo. There was a giddy, almost punch-drunk excitement on the left. The prophecy had been fulfilled: "words have consequences." And now, the right's rhetorical chickens had finally come home to roost. ****

Within hours of the shooting, there was a full-fledged witch hunt to link the shooter to the right.... 

The only problem is that there was no evidence then, and even now, that overheated rhetoric from the right had anything to do with the shooting. (In fact, a couple of people who said they knew him have described him as either apolitical or "quite liberal.") The picture emerging is of a sad and lonely soul slowly, and publicly, slipping into insanity.

Kent has quoted Charles Krauthammer as observing that Jared Loughner's behavior is probably explained by schizophrenia in some form, and wondering what Krugman's excuse is.  My suggestion is simple.  Hate  --  indeed precisely the kind of hate Krugman falsely attributes to those with the temerity to disagree with him.  

If this dreadful episode has any good side, this is it:  It has fully pulled back the curtain on liberal McCarthyism.

 

I've written before about the infamous dropped-down-the-well case of the Black Panther "poll watchers"  --  said poll watching assisted by billy clubs. 

Comes now the Washington Post, all but alone among the liberal media, to do some investigatve reporting,

I quote below an excerpt from the Post story by Jerry Markon and Krissah Thompson (emphasis added):

 

Before the New Black Panther controversy, another case had inflamed those passions. Ike Brown, an African American political boss in rural Mississippi, was accused by the Justice Department in 2005 of discriminating against the county's white minority. It was the first time the 1965 Voting Rights Act was used against minorities and to protect whites.

Coates and Adams [two career attorneys] later told the civil rights commission [against the Department's orders] that the decision to bring the Brown case caused bitter divisions in the voting section and opposition from civil rights groups.

Three Justice Department lawyers, speaking on the condition of anonymity because they feared retaliation from their supervisors, described the same tensions, among career lawyers as well as political appointees. Employees who worked on the Brown case were harassed by colleagues, they said, and some department lawyers anonymously went on legal blogs "absolutely tearing apart anybody who was involved in that case," said one lawyer.

"There are career people who feel strongly that it is not the voting section's job to protect white voters," the lawyer said. "The environment is that you better toe the line of traditional civil rights ideas or you better keep quiet about it, because you will not advance, you will not receive awards and you will be ostracized."

 

We now have a Justice Department whose own lawyers fear retaliation if they seek equal treatment for all races.  This is what Eric Holder has brought us.

Those of you who follow Doug Berman's entertaining Sentencing Law and Policy will see that a hue and cry is being raised about the Davis opinion.  This was to be expected.  As I have noted there:

The abolitionist refrain about Troy Davis's "innocence" is identical in its shrill, superior and indignant character to the same claim they made about Roger Keith Coleman. And it's identical in one other respect as well, to wit, it's identically false.

Let's face it. Troy Davis's "innocence" was, in the abolitionist eye, never going to be a product of evidence. The district court's opinion could have gone on for 1000 pages and it would have made no difference. Davis's "innocence" has become an urban myth of the abolitionist Left, much in the way that George Bush's "complicity" in arranging the 9-11 attacks has become a Leftist myth. Davis's innocence must be assumed, no matter what the balance of the evidence or the care taken to parse it, because that assumption is the necessary predicate to slam the United States as a rogue country that willy-nilly executes people for the fun of it, especially if they're black.

This mindset is related to, though not exactly the same as, the one that insists OJ didn't do it. OJ was acquitted (by the criminal jury, although not the civil one), so he's not an adjudicated murderer, no doubt about that.  But is he the guy who stuck in the knife? No serious person -- except those who're serious about hating the country -- thinks he wasn't.

Again, to a certain turn of mind, these episodes have long since stopped being cases and started being icons. They are the Religion of the Left. That's the reason debates with abolitionists go nowhere. You can argue facts, but you can't argue religion.

In this video, WSJ columnist Peter Jeffrey gives us a whimsical view of what former Gov. Blago might say in explanation of his decision not to testify at his trial.

In mid-April, while commenting on the gaping lack of trust our citizens now bear toward their government, I noted that one of the reasons for the loss of faith is growing evidence that the Justice Department has become incompetent or politicized or both.  One of the more alarming examples of politicization was the decision to drop what would seem to be an ice-cold case against the New Black Panthers for voter intimidation at a Philadelphia polling place.  (The C&C News Scan recently reported new developments in the matter).

The story is being covered in depth by Powerline, whose most recent entry is here.  Having been both a career attorney at the Department and a political appointee, I am appalled by it.  One of the two career attorneys who had been handling the matter thought the behavior of his political superiors so shocking and dishonest that he could not continue at the Department.  In an op-ed in the Washington Times, he made this observation:

The New Black Panther case was the simplest and most obvious violation of federal law I saw in my Justice Department career. Because of the corrupt nature of the dismissal, statements falsely characterizing the case and, most of all, indefensible orders for the career attorneys not to comply with lawful subpoenas investigating the dismissal, this month I resigned my position as a Department of Justice attorney.

The Department's decision to drop the case, apparently because the Black Panther toughs were intimidating "only" white and Republican voters, is a scandal unto itself.  But's that's too obvious for argument.  What I want to flag here is the other scandal:  the Big Press Cover-Up.

Does a person commit the crime of knowingly bringing a controlled substance into a jail when his entry into the jail was involuntary (i.e., when he was arrested for another crime). Yes, in California, the Cal. Supreme Court decided today in People v. Low, S151961. Does the dilemma of having to either violate this statute or dump the drugs in view of the arresting officer before entering the jail, thus effectively admitting the lesser crime of possessing them outside the jail, violate the Fifth Amendment? No.

Justice Sotomayor joined the Court's 6-3 majority today in Barber v. Thomas, upholding the Bureau of Prisons' method of computing good time credits.  The Bureau uses the actual time the defendant has been in jail; the defendant had wanted the computation based on the inevitably longer period to which he was sentenced.

The case is not a blockbuster, although it is marginally significant for the roughly 200,000 federal inmates.  The principal significance for the rest of us is that Justice Sotomayor voted for the government in a case where an "empathy"-driven judge (see, e.g., Justice Kennedy and his sentiment-laden writings in Graham, Roper and Kennedy v. Lousiana) could easily have gone the other way.

Unsurprisingly, Sotomayor voted as Justice Souter surely would have in Graham.  But today's case is different.  It is difficult to believe that Souter  --  ever looking to eke out a way to boost criminal defendants  --  would have voted with today's majority.  This is the frist criminal case in which I am certain that Sotomayor cast a more "consevative" vote than Souter would have.

Ladies and gentemen, there may yet be hope.

Lyle Denniston at SCOTUSblog reports that Justice Stevens has denied the former Illinois governor's request for a stay of his corruption trial.

Jesse Holland has this story for AP.

An editorial in today's Los Angeles Times comments, "[w]e'd prefer a longer break" than the 14-day "break in custody" rule established by last week's Supreme Court decision in Maryland v. Shatzer.  While the editorial commends the Court for drawing a bright line rule that police may reinterrogate a suspect 14 days after the suspect's first interrogation, it also finds it disturbing that between Shatzer's first interrogation in 2003, and his second in 2006, Shatzer remained in prison.  The editorial comments that "[i]mprisonment is not 'normal life,'" and takes issue with the Court's conclusion that Shatzer, who had remained in prison, had returned to "normal life" for some time before the second interrogation.  The editorial writes, "[t]he court would have been truer to Miranda if it had recognized that, in this case, there was no gap in custody."

The problem with this argument is that Shatzer didn't really address Miranda, it addressed Edwards v. Arizona, and whether there could be an exception to Edwards' rule that once a suspect invokes his right to counsel police cannot reinterrogate the suspect unless he initiates further communication.  Edwards was intended to prevent police from holding suspects in jail and using coercive measures to badger them into giving confessions. 

Last week's decision in Shatzer acknowledged that badgering and police coercion are far less likely when a suspect has been released from the interrogation room "and returned to his normal life for some time before the later reinterrogation."  The decision acknowledged that when a suspect has been released and returns to his daily routines "there is little reason to think that [a suspect's] change of heart regarding interrogation without counsel has been coerced."  The suspect in Edwards had not been released, and had been held overnight and questioned until he confessed.  Edwards sought to reinforce Miranda by ending this type of practice, and the exception to Edwards recognized in Shatzer does not undermine the Fifth Amendment's protection from compelled self-incrimination.  Miranda warnings must be read to suspects and interrogation cannot continue until a suspect waives his rights.  Shatzer simply recognized that a suspect could have a "change of heart" and might voluntarily answer police questions 14 days after his first interrogation.