In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind. The President's supporters tell us that, if Bergdahl deserted -- or even became a collaborator -- we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.Ladies and gentlemen, it's not gonna happen. There isn't going to be any honest investigation, and there isn't going to be any punishment. The President is going to issue a preemptive pardon to make sure the process never gets off the ground.
Recently in Clemency Category
Nearly all of the exceptional elements of Obamaism are present. The president appeases a deadly enemy (recall his statement that he hopes through the exchange to gain the trust of the Taliban); makes life more dangerous for an ally we are about to abandon (Afghanistan will bear the brunt of the terrorism unleashed by the five Taliban commanders); and disregards American law (which required him to consult with Congress). Moreover, he does all of this on behalf of an anti-American deserter and his jihadist-sympathizing father.
You couldn't make this up.
At the end of the piece, Paul quotes me asking what more Obama can do to damage the country. Of course I don't know exactly, but there are those thousands of heroin pushers yet to get their promised clemency....
Edward Schad's long-overdue execution is scheduled for tomorrow in Arizona. The US Supreme Court opinion affirming the judgment on direct appeal 22 years ago is here.
In addition to all the challenges to the court proceedings, the federal public defender filed an action attacking the executive clemency proceedings. The primary US Supreme Court precedent on such an attack is Ohio Adult Parole Authority v. Woodard (1998). This is a 4-4-1 split opinion, so we have to pick our way through two opinions to decide what has been decided and what is open. Judicial review of executive clemency, a core function of a coordinate branch of government, is allowed either (1) never, or (2) only under extreme circumstances, such as decision by flipping a coin or cases of bribery. Which of these alternatives is correct is unresolved, but the law is certainly no more favorable to the inmate than (2).
As is evident from the Ninth Circuit's opinion in Schad's case, nothing remotely close to alternative (2) is involved in this case.
So why were scarce resources, needed to perform the FPD's core functions, squandered on this patently meritless action?
The victim's parents filed suit to attack the commutation. Today, the SacBee reports, Sacramento Judge Lloyd Connelly denied relief.
From the bench, Connelly said that even though he found the commutation of Esteban Núñez "distasteful," "repugnant," and "outside the normal realm...of fundamental justice," he said that the executive authority of the governor gives the office the right to make such decisions.
"It's a discretionary right," Connelly said of the governor's power to commute sentences. He added that the people, through the state constitution, have given the governor the right "to make decisions outside the normal criminal justice process."
That is completely correct. As repugnant as the result is in this case, this is a fundamental separation of powers matter.
Yet the Ninth Circuit's application of Jackson v. Virginia to overturn the conviction was "plainly wrong." The jury resolved the conflicting evidence in favor of guilt, unanimously and beyond a reasonable doubt, and the state courts properly deferred to the factfinder's decision.
To see the "bad law" potential of this case, see another case reversed by the Supreme Court a few years ago, also from the Ninth Circuit, also based on Jackson v. Virginia. Troy Brown was guilty as sin of a horrible rape of a little girl. The case was not capital murder only because she survived, no thanks to Brown. The Ninth completely botched it. The unanimous opinion of the Supreme Court is here. CJLF brief is here.
The criminal justice system does have a safety valve for unusual cases where a properly conducted trial may have reached an unjust result. That "safety valve" power is vested in the executive branch, not the judiciary. It is executive clemency.
On Friday, Gov. Brown commuted Ms. Smith's sentence. David Siders has this post at the SacBee. Curiously, I couldn't find the commutation statement on the Gov's website. Update: Still not on the Gov's site, but I found it here.