Recently in Clemency Category

...there were leaders who sought to put criminals in jail, rather than get them out.  

Yes, well, that was then.  The Justice Department that exists now goes hat-in-hand to pro-criminal groups, seeking their assistance in snuffing perfectly legal sentences for guilty men.  It does this while turning its back on the career prosecutors who, under increasing hardships and sometimes under threat, work to enforce laws the Attorney General sniffs at.  Meanwhile, DOJ embraces as one of the Attorney General's top Assistants a man who made his bones doing a PR campaign for a cop killer.

At this point, it's fair to ask:  Who is the Department of Justice working for?

Why Executive Clemency Has a Foul Aroma

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The frequency of executive clemency in this and the previous Administration is far short of the historical norm.  I suspect this is soon to change; DOJ has all but begged its numerous friends (and future law partners) in the defense bar to "suggest" good candidates for pardons or commutations. 

Many, including me, believe that the recent reluctance to use clemency stems in part from its scandalous misuse by Bill Clinton on his way out the door on January 20, 2001. Probably the most famous of these episodes was the pardon granted fugitive billionaire Marc Rich  --  a pardon facilitated by then-Deputy AG Eric Holder, through a series of (at the time) undisclosed calls to White House Counsel's Office, calls that intentionally circumvented normal DOJ procedures. Another was for the President's half-brother, Roger Clinton, a drug dealer who had finished his prison sentence.  Yet a third was for Susan McDougal, who stonewalled the grand jury investigating the Whitewater scandal and had served 18 months for criminal contempt.

Given that illustrious lineup, people generally do not remember the pardon given Mel Reynolds, a Democratic Congressman from Chicago (where else?), who had been convicted of an odd combination of bank fraud, sexual assault, obstruction of justice and solicitation of child pornography. (Mr. Reynolds' seat was filled by that relative choirboy, Jesse Jackson, Jr., who merely swindled his campaign for three-quarters of a million dollars).

If you were wondering why reluctance to grant clemency lingers, here's a clue:  Mel is back in the news.
Federal public defenders are screaming loudly across the country that the sequester has cut their budgets below what is necessary to perform their essential functions.  Yet some FPDs continue to squander public funds filing claims they should not be filing.

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? 

Arnold's Buddy Commutation Stands

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A lot of us in California had great hope for change when the Governator blew into office, but he slid downhill and ended on an especially ignominious note.  He granted a commutation to the son of a former Speaker of the Assembly, just because the ex-Speaker was his buddy.  The son had already received leniency in the form of a manslaughter conviction for an act that was probably murder.

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.

Last October, in its first decision of the term, the US Supreme Court reversed a decision granting a writ of habeas corpus to Shirley Ree Smith, who had been convicted of the murder her infant grandson.  It was the exemplar of a hard case that threatened to make bad law.  Subsequent developments in the science of shaken baby syndrome cast doubt on the coroner's conclusion regarding cause of death.

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 websiteUpdate:  Still not on the Gov's site, but I found it here.

Where's Your Compassion? A Lockerbie Update.

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Kent and I wrote a number of times about the "compassionate release" of the Lockerbie bomber/mass murderer,  Abdelbaset Ali Mohmed al-Megrahi, by Scotish authorities.  Al-Megrahi had only a few weeks to live, so we were told.  As Scottish Justice Secretary Kenny MacAskill huffed in the characteristically superior style of European Higher Wisdom, "Our justice system demands that judgment be imposed but compassion be available. Our beliefs dictate that justice be served but mercy be shown."

This sounded like a bunch of baloney at the time, and I said so.

I must now confess error.  It was not so much baloney as a pack of outright lies, compounded, we now find out, by international blackmail and big-time payoffs.  The whole astoundingly corrupt story is covered in this Powerline entry.  Its first two paragraphs read:

The most interesting news story of the morning comes from Libya, where it is claimed that Abdelbaset Ali Mohmed al-Megrahi, the Lockerbie bomber, secured his release by blackmailing Muammar Qadaffi, who in turn bribed England's Labour government to let him go:

Abdelbaset Ali Mohmed al-Megrahi allegedly threatened "revenge" on Col Gaddafi unless he was returned home to his family, prompting the dictator to spend £50,000-a-month on lobbying and legal fees in a campaign to secure the terrorist's release.

Most of the criminal defense bar's nonstop yammering about "compassion" is nowhere near as reprehensible as the Lockerbie release story; it's merely the last gasp of the guilty trying a shopworn courtroom stunt.  Still, the Lockerbie tale is worth remembering the next time defense counsel starts in on you for being short on "compassion."

P.S.   Al-Megrahi, the man about to kick the bucket when released, now lives as a celebrity in Libya, a year and a half after being freed.


He's Baa-aaaack

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Kentucky death row inmate Ralph Steven Baze (from Baze v. Rees re: the Kentucky execution drug protocol) is back in court, this time seeking a federal court order for "unfettered access" to interview prison personnel in support of his application for clemency.  The district court ruled, and the Sixth Circuit affirmed, that federal courts lack jurisdiction to order such relief.

First, Baze argues that "the plain language of § 3599(f) provides jurisdiction and authority to prevent . . . interference" with an attorney's efforts to obtain investigative services.
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We disagree with Baze's textual interpretation. The relevant provision simply empowers a court to authorize, for purposes of compensation, an attorney to acquire an investigator's efforts--not his total success. Therefore, it does not, as Baze argues, enable a court to order any party that stands in the investigator's way to stand down. To permit someone to seek information is not the same as establishing a substantive right for that person to acquire that information over all possible obstacles.
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In the alternative, Baze argues that the All Writs Act, 28 U.S.C. § 1651, empowers the district court to order KDOC to allow him to interview prison personnel and inmates.  The All Writs Act provides, in relevant part, that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." . . . Baze argues that, "because the district court was empowered under 18 U.S.C. § 3599 to authorize counsel to obtain services, the All Writs Act authorizes orders necessary to prevent government officials from interfering with those services." . . . Because section 3599 speaks only to funding, Baze's All Writs Act argument meets the same fate as his section-3599 argument. 

Thanks to commenter "federalist" for the link.
Another of the Governator's last-minute clemencies was for Sara Kruzan, who committed murder at the age of 16.  Her cause was championed by State Senator Leland Yee, who for the last several years has been pushing legislation to create a possibility of parole for all under-18 murderers.

The National Organization of Victims of Juvenile Lifers cites the Kruzan clemency as evidence that Yee's legislation is unnecessary.  There are already enough safety valves in the system.  Their press release follows the jump.


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Note to would-be gang members:  If you decide to throw away the opportunities you have for a law-abiding life, join a gang, and participate in stabbing someone to death just because you weren't allowed into a party to which you were not invited, just be sure your father is the speaker of the state assembly.

On his way out the door, the Governator commuted the manslaughter sentence of Esteban Nunez, who just by the wildest of coincidences happens to be the son of former Speaker Fabian Nunez.

This 2008 LAT article by Tony Perry and Patrick McGreevy describes Nunez's membership in The Hazard Crew and the circumstances of the killing of Luis Dos Santos near San Diego State University.

Ryan Lillis reports in the SacBee, "Dos Santos' family was outraged by the governor's action. 'This is wrong, that's why they did it on the last day, so they wouldn't have to answer to anybody,' said Fred Santos, the victim's father."

Dana Littlefield and Karen Kucher report in the San Diego Union-Tribune:

San Diego County District Attorney Bonnie Dumanis said her office was not consulted before fellow Republican Schwarzenegger announced his decision to reduce the prison sentence from 16 years to seven years.
"We were shocked to hear of the Governor's last-minute commutation, which greatly diminishes justice for victim Luis Santos and re-victimizes his family and friends," Dumanis, a former Superior Court judge, said in a statement.
Nunez had already received leniency by being allowed to plead to manslaughter when the crime was straight-up murder.  Failure to consult the prosecutor and get the other side of the story in a case such as this is inexcusable.

The San Jose Mercury-News has this editorial calling for an end to end-of-term pardons.  In 2003, I wrote a constitutional amendment that would have done just that.  It was killed in committee.

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