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Ed Royce, chairman of the House Foreign Affairs Committee has this op-ed in the WSJ with the above title.

With less than a month remaining in office, President Obama is racing to free 19 more detainees from the terrorist prison at Guantanamo Bay. If history is any guide, this means that dangerous jihadists will be released to countries ill-equipped to handle them.

While many wondered whether Mr. Obama would fulfill his 2008 campaign promise to close Gitmo by breaking a bipartisan law barring him from bringing detainees to the U.S., the House Foreign Affairs Committee has remained focused on the president's push to empty out the prison through reckless transfers to other countries.
The correct path to emptying Gitmo seems rather obvious.  The lesser detainees have already been released or transferred.  The major ones, for the most part, have been in custody long enough as to no longer have value for interrogation for intelligence purposes.  What do we do with them, if we don't want to keep them in Gitmo or transfer them to foreign governments?

They should not be on American soil; they should be in it.  Why is KSM still alive?

The military tribunals were set up to be swift.  Unlike the independent Article III judiciary, they are under the command of the commander-in-chief.  So order them to get it done.
The federal district court in Vermont has denied a defense motion to strike the US Attorney's Office's Notice of Intent to Seek the Death Penalty.  The court's 57-page Memorandum Opinion is here.

The court essentially agreed with the defendant that the death penalty as presently administered falls short of constitutional standards, but held that, "Institutional authority to change this body of law is reserved to the Supreme Court."

This is a reminder of why it was so important to prevent President Obama from filling Justice Scalia's seat with a jurist who would be (relatively) more open to abolitionist arguments, and even more important to defeat Sec. Clinton with a candidate whose robust support for the death penalty is not in doubt.  

Client Control and Conceding Guilt

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Today the U.S. Supreme Court declined to take up the case of Tyler v. Louisiana, No. 15-8814.  Tyler's complaint is that his lawyers ignored his direction to focus on the guilt aspect of the case and instead focused solely on penalty, effectively conceding his guilt. 

I have more sympathy with Tyler's claim than I do with most ineffective assistance claims.  There is a fundamental principle in the attorney-client relationship that the client chooses the goals and the attorney uses his professional judgment regarding the best way to achieve the client-chosen goals.  I have letters from death row complaining that, on appeal, the client has chosen a "give me liberty or give me death" goal, directing the lawyer to focus solely on the guilt verdict, and the lawyer has ignored the direction.

In the Tyler case, though, some of the reporting is leading people to believe that the guilt case against Tyler was thin and his lawyers effectively conceded the guilt of a person who might well be innocent.  After the break, I will quote a portion of the state's brief in opposition on the actual state of the evidence.
Another controversy relating to the execution of Ronald Smith concerns use of the three-drug protocol with midazolam (Versed) as the first drug.  This is the same protocol that was at issue in Glossip v. Gross in 2015.  Kent Faulk of the Birmingham News reports:

During the 34-minute execution at the Holman Correctional Facility in Atmore, Smith heaved and coughed for about 13 minutes and underwent two consciousness tests to make sure he couldn't feel pain.
We have known for some time that the single-drug method with thiopental or pentobarbital is the way to go.  Texas has done dozens of these without incident.  The incoming administration should take steps to make sure the states can obtain these drugs, both to reduce the chance of an actually inhumane execution and to ensure that justice is not defeated by a complete unavailability.

There are a number of possible routes to a fix.  The erroneous decision that prevents states from importing thiopental from willing sellers overseas could be abrogated by statute or taken up to the U.S. Supreme Court.  The government could itself  import the drug or the ingredients from which it is compounded and distribute them to the states.  A government entity with the capability to do so might manufacture the drug.  One way or another, a permanent fix to this problem should be a priority.
As noted in today's News Scan, last night Alabama executed murderer Ronald Smith.  The execution involved last-minute petitions to the U.S. Supreme Court, which is routine, but there was an unusual four-four split on the presently eight-justice court.

At the root of the case is the decision last term in Hurst v. Florida.  Under the post-1976 capital sentencing system mandated by Supreme Court precedents, courts must find the defendant guilty of murder plus at least one factor from a list of aggravating factors defined by state law before the death penalty can be considered.  In Ring v. Arizona (2002), the Supreme Court overruled its own precedent and said the jury, not the judge, must make that latter finding.  In Hurst v. Florida (2016), the court applied Ring to strike down the Florida sentencing system that it had repeatedly approved multiple times against the very same attack.

Does Hurst extend further, to require the jury and not the judge to make the additional findings that state law requires before a "death-eligible" defendant is actually sentenced to death?  In my opinion (and that of the Alabama courts), the answer is clearly no.  However, the Delaware and Florida Supreme Court think it does.

The U.S. Supreme Court needs to take this issue up and resolve the split, and an Alabama case would be the cleanest vehicle to do so.  The high court has sent several Alabama cases back to the state courts, and it presently has several on its docket pending decision on whether to take them up.  The Smith case last night, however, was not a clean case.

The Plea Bargain Effect in Practice

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Last week in Stockton, California, a plea bargain was reached in one of the most notorious cases in recent years, a bank robbery in which the robbers took hostages, one of whom was killed.  Roger Phillips reports for the Record:

[Paul] Singh spoke about three hours after Jaime Ramos and Pablo Ruvalcaba pleaded guilty to the murder of his wife, 41-year-old Misty Holt-Singh, during Stockton's Bank of the West robbery on July 16, 2014.

Ramos, 21, will spend the rest of his life in prison. Ruvalcaba, 23, received 25 years to life.
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Ramos had faced the death penalty. Public defender Jonathan Fattarsi, who represents Ramos, suggested it was not a coincidence that his client's case was resolved within weeks of California voters' rejection of a measure that would have abolished capital punishment in the state.

"Obviously we didn't want to start talking seriously about (a plea agreement) with the District Attorney until after we knew the fate of Proposition 62," Fattarsi said.

If voters had ended the death penalty, Fattarsi said, the motivation to accept a life sentence for his client would have been gone.

Proposition 66 Status

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As of 2:24 pm today, the Proposition 66 margin of "yes" over "no" is 287,711 votes.  This exceeds the number of unprocessed ballots in today's 11:59 am Unprocessed Ballots Report, which is 232,852.

The Secretary of State has until December 16 to certify for results for all races except the presidential election.

The all-but-final result on the Proposition 62, the death penalty repeal measure, is 46.9% to 53.1%.  The margin is 845,755 votes.  The 6% spread is greater than the 4% spread by which California voters rejected substantially the same proposal four years earlier as Proposition 34. 

Moore v. Texas Podcast

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The Federalist Society has this Courthouse Steps podcast on the Nov. 29 Supreme Court oral argument in Moore v. Texas.  The podcast is a recording of a December 2 teleforum with CJLF Legal Director Kent Scheidegger.
Two weeks ago, the U.S. Supreme Court summarily dumped a case brought by Visa, Inc. et al. because the petitioners got the court to take the case up saying it was about one issue and then relied on a different argument once they reached the merits stage.

It's not nice to bait-and-switch the nation's highest court.  Yet lawyers for a habitual criminal who blew the head off a store clerk during a robbery may get away with doing exactly that.  Capital defense lawyers are special, you see.  Rules don't apply to them.

Here is the Question Presented as drafted by lawyers for Texas murderer Bobby James Moore:

Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
See any issue there about whether the Texas standard of Ex parte Briseno ever conformed to the subsequently "outdated" standards in the first place?  Nope.  It's not there.  But today's oral argument was nearly all about that.  The Chief Justice was not pleased, but he may not have a majority.
Although this CBS story refers to Dylann Roof as the "suspect" in the Charleston church massacre, I'm not sure why.  No sane person I've ever heard of has any doubt that Roof is the killer.  Saying that he's the "suspect" in the murders is like saying Fidel Castro was "suspected" of being the dictator of Cuba.

But I digress.  Roof asked for, and today was granted, the right to represent himself. I of course have no idea what the defense will be but, like the judge, I think this is a strategically poor decision.  It's unlikely that Roof will be anywhere near as creative, or as smooth a talker, as an experienced criminal defense lawyer would have been.

Roof's choice does have at least one advantage for those of us who think the death penalty should be imposed, without manufactured delay, on defendants unquestionably guilty of grotesque murders:  The knowing choice to represent one's self after having been frankly warned by the court of its perils is a waiver of an ineffective assistance of counsel claim on appeal.  When you buy the package knowing the defects of what's inside, you give up the right to complain that the merchandise was rotten. 

I can't say there's a lot I admire about Dylann Roof, but I respect his decision to take on his own defense.  In its own odd and revolting way, it's likely to be more truthful than the slicker version he put aside.

AP Calls Prop. 66

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Associated Press "called" the result on Proposition 66 last night.  Brian Melley of AP has this story.

The opponents are making their usual claims in the press that Prop. 66 won't work.  However, they sing a very different tune in court.

In the petition filed in the California Supreme Court in Briggs and Van de Kamp v. Brown et al., S238309, former California Attorney General John Van de Kamp declares under penalty of perjury:

It [Proposition 66] will also make it more likely, and more immediate, for persons sentenced to death to face their executions.
Yes, that was exactly the idea.  The opponents are apoplectic about Proposition 66's passage precisely because they know it will work, even while they tell the people the opposite.

Yes on 66 Committee Declares Victory

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Californians to Mend, Not End, the Death Penalty. No on Prop 62, Yes on Prop 66 issued a press release this afternoon.  The text follows the break.

Update (11/23):  AP "called" the race the evening of Tuesday, November 22.  The prior information noted here that AP had called it the previous Friday was incorrect.

UK Foreign Secty on Turkey DP

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Alex Barker, Arthur Beesley, and Henry Mance report for the Financial Times:

Boris Johnson has urged the EU to stop pushing Turkey "into a corner" over the death penalty, in an intervention that stunned fellow ministers still bristling over the British foreign secretary's outspoken warnings over Turkey's EU membership during the Brexit campaign.

An already tense meeting of foreign ministers in Brussels flared up on Monday as Mr Johnson argued that the bloc must avoid lecturing Ankara over potentially introducing capital punishment.
Once upon a time, Timothy Hennis was hailed by the anti-DP crowd as an innocent man, wrongly convicted and sentenced to death by a badly flawed system and subsequently exonerated.

Then improved DNA technology proved him stone cold guilty.

Drew Brooks reports for the Fayetteville Observer:

An Army appeals court has upheld the death sentence of Timothy Hennis, a former Fort Bragg soldier who in 1985 butchered a mother and two of her young children.

A four-judge panel in the Army Court of Criminal Appeals filed an opinion last month after a review of 49 possible errors in Hennis' 2010 court-martial, which was the third time he stood trial in the case.

The court found that Hennis' claims of double jeopardy were without merit, as was his claim that the Army did not have jurisdiction in the Fayetteville murders.

"We conclude the approved sentence is correct in law and fact," the court opinion said. "Further, under the circumstances of this case, including appellant's rape of one of the murder victims, the vulnerability inherent in the young ages of the other two murder victims, and appellant's mutilation of all three murder victims, we conclude the adjudged and approved death sentence fits the crimes of which he was found guilty."

Prop. 66 Count Update

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As California counties continue to count previously unprocessed ballots, the percentages for Proposition 66 remain quite steady at 51-49.  I have run a calculation using the county returns so far and the number of unprocessed ballots for each county.

Assuming that the unprocessed ballots for each county come in at the same yes/no percentages as the ballots for that county counted so far, the statewide totals will remain 51-49.  That assumption has held quite well so far, but of course we will not know until it is done.

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