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Preventable Deaths

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Timothy Jones, 34, is currently on trial in South Carolina for murdering his five children in 2014.  The year prior, in 2013, he was awarded primary custody following divorce proceedings with his now ex-wife, Amber Jones, 31, who has filed a lawsuit against the South Carolina Department of Social Services.  Brandy Zadrozny of the Daily Beast reports the suit's allegations:

[The DSS] failed to fully investigate multiple allegations of abuse, from teachers, school officials, neighbors, babysitters, and Amber Jones herself, according to the complaint. When investigations uncovered abuse, the DSS made a half-dozen ineffectual "safety plans," instead of reporting evidence of child abuse to the authorities and removing the children from Mr. Jones's care.

Mr. Jones had a history of substance abuse and served time in prison for drug possession, forgery, burglary and car theft, crimes that are now deemed "nonserious" and would classify him as a "nonviolent" offender in the state of California and in the proposed federal sentencing reform.  It is disheartening to realize that this rap sheet, even if regarded by the state and the DSS as consisting of "nonserious" and "nonviolent" offenses, could be discounted when considering the primary custody of five children.

Prosecutors are seeking the death penalty against Mr. Jones for these horrific -- and preventable -- murders.  If ever there was a crime for which death is the suitable penalty, this is it.  Anything less for a man who brutally kills his five small children would be unjust.

Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.

Why We Have the Death Penalty

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Today marks the third anniversary of the Boston Marathon bombing.  The bombers killed three people and injured and maimed 264 others, some grotesquely and many for life.  They also killed an MIT policeman in the aftermath.

The bombers were Dzhokhar Tsarnaev and his brother. The brother was killed in a confrontation with the police. Dzhokhar was captured.

He was and is a Jihadist.  The reason for the bombing was hate for America, neither more nor less.

Over the screeching of abolitionists, and attempts politically to intimidate the government from seeking capital punishment, Dzhokhar was convicted by a federal jury in Boston, one of the most liberal cities in the country, and sentenced to death.

Of course he has not been executed, while taxpayers get dunned for hundreds of thousands of dollars in the service of manufacturing excuses for his gruesome behavior.  In the meantime, in nearby Harvard Law School, the main reaction is shrugging, except for those still protesting in little Dzhokhar's behalf.  

There is a ream I could write about this horrid case, but I'll refrain except to say two things.  First, the case impeaches to the point of farce the notion that we should never, ever permit a jury to consider imposing a death sentence.  Second, for the many in academia and other sanctuaries of self-satisfied righteousness who think, with Dzhokhar, that Amerika stinks, some consideration might be given to what actually stinks, to wit, the continued, everyday suffering of the victims.  
The Georgia Supreme Court summarized the crimes of Kenneth Fults as follows:

The evidence adduced at Fults' sentencing trial showed that he carried out a week-long crime spree which was centered, at least in part, upon his desire to murder a man who was engaged in a relationship with his former girlfriend. Fults first committed two burglaries, obtaining several handguns. After a failed attempt at murdering his former girlfriend's new boyfriend with one of the stolen handguns, Fults then burglarized the home of his next-door neighbors. After the male neighbor left for work, Fults forced his way through the front door wearing gloves and a hat pulled down over his face. Fults confronted the female occupant of the home, Cathy Bounds, brandishing a .22 caliber handgun he had stolen during one of the burglaries. Ms. Bounds begged for her life and offered Fults the rings on her fingers.  Fults turned Ms. Bounds around toward the bedroom, either taped or forced her to tape her eyes closed by wrapping over six feet of electrical tape around her head, forced her into the bedroom, placed her face-down on her bed, placed a pillow over her head, and shot her five times in the back of the head.
Yet another former death row inmate touted as actually innocent and wrongly convicted is now known to be actually guilty.

Tom Jackman reports for the WaPo:

Justin Michael Wolfe, whose capital murder conviction and death sentence was reversed amid concerns about prosecutorial misconduct, pleaded guilty to murder in Prince William County on Tuesday, admitting in a handwritten statement that he and another man plotted the 2001 robbery and slaying of a fellow marijuana dealer.

It was a stunning reversal from Wolfe, who had proclaimed his innocence for 15 years. Wolfe had argued, at times from Virginia's death row, that the murder of Daniel Petrole Jr., the son of a decorated Secret Service agent, was the work of a rogue drug associate. The case featured a co-defendant repeatedly changing his story about the slaying, a federal district judge ordering Wolfe's release from jail in 2012, and two federal courts chastising Prince William prosecutors for withholding evidence from the defense.
*          *          *
In a four-page handwritten statement to the court, Wolfe essentially validated the prosecution's consistent version of events: Wolfe and Owen Merton Barber IV decided to rob and kill Petrole because they knew he would have a large amount of cash and marijuana and feared that a robbery alone would invite revenge. Wolfe acknowledged that he owed Petrole tens of thousands of dollars from continuing drug transactions, and he said that he had planned to split the proceeds with Barber and erase a debt Barber owed him.
*          *          *
Wolfe wrote that he and Barber initially planned only to rob Petrole, as he delivered a marijuana shipment to them, but "eventually we both agreed that it would be necessary to kill Danny because he was probably going to resist the robbery or figure out who did it and have to get revenge. ... I am responsible for Danny's death even though I didn't pull the trigger. If I had not been involved Danny would never have been killed."

This is a clearly proper case for a nontriggerman to be considered fully culpable for the crime.  Where conspirators both intend and premeditate the victim's death, which one actually did the dirty work is virtually irrelevant.
Valentina Pop reports for the WSJ:

A United Nations court sentenced former Bosnian Serb leader Radovan Karadzic to 40 years in prison for genocide, crimes against humanity and war crimes during the Bosnian war in the 1990s. He will appeal the ruling.

The International Criminal Tribunal for the Former Yugoslavia on Thursday found Mr. Karadzic guilty of 10 out of the 11 counts, including genocide for the Srebrenica massacre and criminal responsibility for the shelling of Sarajevo, during a nearly four-year siege on the city. He is the highest-ranking official the court has convicted since its establishment in 1993.
Forty years is a life sentence, given that Karadzic is 70, but it's not enough for genocide. 
This morning we won a major victory in the fight to have capital cases concluded within a reasonable time.  In Habeas Corpus Resource Center v. U.S. Dept. of Justice, No. 14-16928, the U.S. Court of Appeals for the Ninth Circuit vacated an injunction issued by U.S. District Judge Claudia Wilken and put the "fast track" process back on track.

Executions Continue Apace

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With the Texas execution tonight of multiple killer Coy Westbrook, the United States has executed eight inmates in the first 70 days of 2016.  If it continues at that pace (which could either slacken or accelerate), there will be 41 executions this year.  That is the average annual number for the nine preceding years (although slightly more than in any of the last three).  See this chart.

We often hear that the death penalty is dying, but capital punishment keeps knocking on its coffin lid.  Year after year, it tells us it's plugging along.  If this year continues as it has over its first roughly two and a half months, we'll wind up with an execution about every nine days, the same pace as throughout the last decade.  This might not be a robust institution, but, if you go by the numbers, it's not a dying one either. 

When executions continue at a more-or-less constant pace for ten years; and public support for the death penalty remains at or above 60% in each of them (and for the three decades before then); and when, last year, seven Justices declined to go along with two of their colleagues in questioning the per se constitutionality of capital punishment (Glossip)  --  well, I suppose the abolitionist hype will continue, since that seems to be what they do, but hype is still just hype.

It's no big mystery why the death penalty won't go away despite the numerous stern, or sometimes more condescending, sermons from Our Betters:  When you have Wendell Callahan, a career criminal and drug dealer, slicing up little girls out of sheer hate, people are going to understand that we still need a punishment that fits the crime.

A Fact-Bound Summary Reversal

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The U.S. Supreme Court summarily reversed a Louisiana state court's denial of habeas corpus relief to Michael Wearry, an inmate on that state's death row.

Generally, if one has prevailed in a lower court and wants the U.S. Supreme Court to deny review, arguing that the case is "fact-bound" is a good bet.  The Supreme Court's "reason for being" is to settle broad questions of law on which other courts disagree, not to police case-specific application of settled law to particular fact patterns.

In this case, Wearry claims he actually didn't do it, and he is one of the rare death row inmates with a "colorable claim" to that effect, to use Judge Friendly's famous term.  The specific constitutional violation claimed is that the prosecution failed to disclose exculpatory evidence.  The "application of law to fact" question is whether that evidence is "material," defined "new evidence [that] is sufficient to 'undermine confidence' in the verdict."  (See p. 7 of the slip opinion.)

Justice Alito, joined by Justice Thomas, finds summary disposition "highly inappropriate" and calls for the case to be given full briefing and argument instead.

This is the kind of case that should not have been capital in the first place.  In my opinion, trial prosecutors should not seek the death penalty in any case where the evidence of identity of the perpetrator is such that a jury would have any difficulty at all finding that the proof is beyond a reasonable doubt.  More discretion here would avoid a host of problems, and most prosecutors' offices do, in fact, screen out cases on that basis.

Florida Fix Final

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Florida's Hurst fix bill, HR 7101, was signed by Governor Scott and chaptered as 2016-13.

Two months ago, I denounced an NYT hatchet job misrepresenting one of the cases Cruz handled in the Supreme Court when he was Texas Solicitor General.  Now we have this article by Jonathan Mahler. 

This time the focus is on the case of José Medellín, one of the perpetrators of one of the most horrific gang-rape murders in the history of Houston.  I know a lot about this case.  I wrote three briefs in it before we finally delivered this scum-of-the-earth his just deserts.  Cruz rightly touts his role in this effort as a major accomplishment, but Mahler views it through the Times's partisan, polarized "all the news that fits our agenda" lens.

As with the previous post, let me note that CJLF takes no position in the Republican primary and endorses no candidate.  We care about the truth.  It is painfully evident that Mahler and the NYT do not. 
The Florida Senate rejected an amendment to the House bill to fix the Hurst v. Florida problem and then passed the bill 35-5.

Both of the bills considered by the legislature fix the immediate problem by having the jury render an explicit verdict on qualifying aggravating circumstances unanimously and based on proof beyond a reasonable doubt.  The compromise bill allows the jury to recommend a death sentence on a 10-2 vote or greater.

The defeated amendment would have undone the compromise and adopted a single-juror-veto system.  A genuine jury unanimity bill, requiring the jury to decide unanimously one way or the other as it does in the guilt phase, was never considered.

Meanwhile, in Colorado, a committee killed an attempt to dump the single-juror-veto system that produced the miscarriage of justice in the Aurora theater shooting case and replace it with a true unanimity system.  The vote was nearly along party lines.

In Utah, a repeal bill narrowly passed the state senate, Jacob Gershman reports in WSJ Law Blog.  The governor is a strong supporter of capital punishment.

Certiorari Denied to Joseph Edward Duncan

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Joseph Edward Duncan is a serial murderer and rapist who thoroughly deserves his death sentence.  His Murderpedia entry is here

At one point, Duncan apparently understood himself that his sentence was just, and he declined to appeal it.  His "standby counsel" filed a notice of appeal with no authority to do so.  The capital defense bar apparently regards "volunteering" as per se proof of insanity, and lawyers regularly rush in and try to overrule any client who seeks to dismiss reviews of his death sentence.

Duncan later changed his mind, but too late.  The District Court found that Duncan was mentally competent, struck the void notice filed by standby counsel, and denied Duncan's motion to withdraw his waiver.  The Ninth Circuit affirmed.  Today the U.S. Supreme Court denied the certiorari petition in Duncan v. United States, No. 15-6408.
The Florida House of Representative has passed the Hurst fix bill, HB 7101, by a vote of 93-20.  To fix the immediate problem, the bill would require the jury in a capital case to find at least one aggravating circumstance unanimously for the case to be death-eligible.  The bill goes on to require at least a 10-2 vote for the defendant to actually be sentenced to death.

The Senate bill is a single-juror veto bill, misrepresented as a jury unanimity bill.  Press reports indicate that the 10-2 vote, up from 9-3 in the earlier House bill and up from simple majority under current law, is an agreed-upon compromise between the houses.  Steve Bousquet had this story in the Tampa Bay Times yesterday.

See also my prior post.

Is Eight Enough?

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Mark Sherman has this article for AP. 

Is eight enough?

The Supreme Court has managed to function effectively at less than its full nine-member strength for two extended periods in the past 50 years. The question now is whether the death of Justice Antonin Scalia in the middle of the court term and a polarizing presidential campaign will make it harder for the justices to get their work done.
One paragraph in the article needs correction, though.

The most notable of the deferred cases may have been challenges to the death penalty, according to Bob Woodward and Scott Armstrong's book "The Brethren." Harry Blackmun joined the court in May 1970, after the Democratic-controlled Senate rejected President Richard Nixon's first two choices. It was another two years, after the retirements of two more justices, before the court took up the issue and struck down every state death penalty statute.
It was, in fact, two weeks, not two years, "before the court took up the issue."

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