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Gender in Risk Assessment

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The Wisconsin Supreme Court held yesterday that the use of risk assessment measures in sentencing decisions does not violate due process as long as certain precautions are undertaken.  The case involves the use of COMPAS, a common measure used in many states to help guide sentencing decisions. 

There's much to mull on in this decision and plenty of commentary will likely be forthcoming, but one aspect deserves consideration. The defendant, Eric Loomis, challenged the measure based on its use of gender in arriving at its conclusion that he posed a high risk of recidivism.   As the decision highlights, it is not apparent how gender is calculated by COMPAS because the calculations are considered proprietary and are not disclosed.    The parties disagree whether gender is used as a criminogenic factor or merely for statistical norming, yet both agree that it is well known that men commit a disproportionate amount of crime.  
A few post-settlement developments in the California lethal injection suit, Winchell & Alexander v. Beard, last noted here.

Yesterday, June 3, Judge Chang signed the stipulated judgment.  Applications to intervene in the case were set for hearing tomorrow, June 5.  The applicants were Mitchell Sims, the "slice of murder" killer sentenced to death in two states, represented at taxpayer expense by the Habeas Corpus Resource Center, and Michael Morales and Tiequon Cox, the men who murdered my clients' family members, represented by David Senior and, curiously, Jenner & Block, contra bono publico.  Today, the court entered an order that the applications were moot in light of the settlement and cancelling the hearing.
Last Wednesday, I noted in this post some of the reasons why Judge Carney's decision in Jones v. Chappell (declaring California's death penalty unconstitutional due to delays in execution) was wrong.  The opinion is wrong in so many ways that it will take a number of posts to catalog them.

To that end, former California Supervising Deputy Attorney General James Ching has this post at giving some more reasons:

There is no doubt that the District Court condemns only state processes: "The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute."
The placing of blame is underlined by the District Court's failure to address any federal responsibility for the delay or to issue relief against the federal courts. However, if "[a]rbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises," it must surely apply to the 46.2% of the total delay and dysfunction.
Next Monday, the D.C. Circuit will hear argument in Cook v. FDA, No. 12-5176.  In that case (formerly Beaty v. FDA), the District Court held that the FDA had acted illegally in allowing importation of sodium thiopental for executions.  The court went on to order the FDA to inform the states that use of their existing stocks of thiopental is illegal and to take steps to recover it.  In issuing the latter part of the injunction, the court was untroubled by the fact that not a single word of the briefing or the court's opinion provided a legal basis for the order.  It was also untroubled by the facts that the states with a powerful interest involved were not parties to the action, the plaintiffs had not taken any steps to make them parties, and the plaintiffs had not shown any reason for an exception to the general rule against adjudicating the rights of nonparties in their absence.

In the Court of Appeals, CJLF appeared as amicus pointing out these problems.  The nonparty problem is the subject of Federal Rule of Civil Procedure 19.  The plaintiffs largely ignored the brief, just dropping one footnote about the general rule of not considering issues raised only by amici.  That rule has exceptions that the plaintiffs simply ignored.  Some issues must be considered whether a party raises them or not.  Subject matter jurisdiction is one, and Rule 19 is another.

Today the court issued the following order:

It is ORDERED, on the court's own motion, that the parties be prepared to address at oral argument on March 25, 2013, (1) the standing of the appellees to bring this case, with particular reference to the requirement of redressability; and the (2) Federal Rule of Civil Procedure 19 and remedial issues raised in the brief of the amicus curiae Criminal Justice Legal Foundation.
A prior post with links to multiple earlier posts on this case is here.  CJLF's summary of argument and a link to the full brief are in this post.
Oral argument in Chaidez v. United States, on the retroactivity of Padilla v. Kentucky, had been scheduled for tomorrow.  However, the argument has been reset for an unusual Thursday session due to the impending landfall of Hurricane Sandy.

The Court's press release is here.  CJLF's brief in the case is here.

Shooting "At" a Vehicle

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People v. Manzo, S191400, California Supreme Court, March 8:

Penal Code section 246 (section 246) makes it unlawful for any person to maliciously and willfully discharge a firearm at an occupied motor vehicle. In this case, defendant was convicted of violating section 246 by standing outside his truck and shooting Jose Valadez, a passenger. Defendant argues that because the gun had crossed the threshold of the truck at the time of the shooting, the gun was not "discharged 'at' the vehicle" but was instead discharged "within" the vehicle. According to defendant, "[w]hat matters under section 246 is what the shooting is 'at,' a determination that depends on the location of the discharge (the tip of the gun), not the location of the shooter." The Court of Appeal decided this was a reasonable construction of section 246 and invoked the rule of lenity to reverse defendant's conviction for shooting at an occupied vehicle.

Although we agree that the statutory text alone is susceptible of more than one interpretation, including an interpretation favoring defendant, reliable extrinsic aids to statutory construction convince us that the Legislature intended section 246 to apply to a person standing outside an occupied motor vehicle and shooting into it, even if the gun has crossed the plane of the vehicle. Because we can discern the Legislature's intent in enacting section 246, there is no need to invoke the rule of lenity as "a tie-breaking principle" in this case. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1102, fn. 30.) We therefore reverse the judgment of the Court of Appeal insofar as it reversed defendant's section 246 conviction and the accompanying true findings on the firearm and great bodily injury allegations.

Rape and the ACCA

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Does rape involving a minor who cannot consent but does not involve overt acts of violence qualify as "violent felony" under the Armed Career Criminal Act? According to the 11th Circuit the answer is "no" decided last month in US v. Owens, Docket No. 07-00124-CR-S, slip op. (11th Cir. February 27, 2012).  Citing the Supreme Court's holding in Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265 (2010), the court held:

For this court to uphold Owens's sentence, we would have to conclude that Ivory's holding--that Alabama's second degree rape statute "inherently poses a serious potential risk of physical injury to another" and consequently "qualifies as a crime of violence under ยง 4B1.2(a)(2)"--comports with the Johnson Court's definition of "violent felony" under the ACCA. We would be intellectually dishonest if we decided that in the affirmative. As the Court stated in Johnson, a crime must have as an element the use of physical force against the person of another and that physical force in the context of the ACCA means violent force. Johnson, 130 S. 1271.

The Stolen Valor Act

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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.

Davis Argument

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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.

Theft on a Grand Scale


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.

Defining Depraved

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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.

It's Not a Swindle, it's Root Causes! Please!

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"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!


The Hate Machine Backfires


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.

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