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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536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
See any issue there about whether the Texas standard of Ex parte Briseno ever conformed to the subsequently "outdated" standards in the first place?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.

Setting the Details on Execution Methods

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The ACLU is really getting desperate to stop resumption of executions in California.  They certainly lost on one of the ballot measures last week, and it is close to certain they lost on the other.  AP has not "called" Proposition 66, but the Secretary of State's Office did remove it from its "close contests" page this afternoon when the margin inched up to the 2% threshold for "close."

In California, and in almost all states, the legislature sets the method of execution in broad terms and the prison department fills in the details.  That has been the law here and almost every capital punishment state for a long time.  The outlier is Arkansas, where a howler of a decision by the state supreme court said that violates the separation of powers.

Maura Dolan reports in the L.A. Times:

The ACLU of Northern California challenged a state law that gives the Department of Corrections and Rehabilitation wide flexibility in establishing execution procedures.

Delegating such policy decisions to a state agency, the suit says, violates separation of powers provisions of the California Constitution.
Seriously?  It never has before.
Last March, as noted here, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed the clearly erroneous ruling by Judge Claudia Wilken enjoining the implementation of the regulations for the federal habeas corpus "fast track."  See the earlier post for details.

Today the Ninth finally denied the petition for rehearing en banc (i.e., to have the case reconsidered by an 11-judge panel). 

The other side can ask the U.S. Supreme Court to take the case, but it is unlikely they will.

Running the Table on the Death Penalty

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Here are results on death penalty ballot measures as of 6:40 am PST:

Nebraska:  Referendum 426 to repeal the Legislature's repeal of the death penalty, thereby reinstating capital punishment in the state approved 61-39.  All precincts completely reporting.

Oklahoma:  Question 776 to amend the state constitution to preclude any doubt of the constitutionality of the death penalty approved 66-34.  All precincts completely reporting.

California, with 99.4% of precincts reporting (not all completely): 

Proposition 62 to repeal the death penalty defeated 46-54.

Proposition 66 to speed up the review of capital cases approved 51-49.

Note that California voters rejected repeal by double the margin that they rejected Proposition 34 four years ago.

Why the squeaker on 66?  A confusing ballot label did not really tell the voters what it is about, so the people who had not paid much attention to the issue before going into the voting booth did not know.  Californians tend to vote no on ballot measures when they are confused or uncertain.  In addition, a profoundly dishonest campaign of mailers, advertisements, and articles by the opponents telling outright lies about the proposition doubtless convinced many people who agree with the proposition's goals to nonetheless vote against it.

Update 11/14:  Yet despite all that, Proposition 66 still appears headed for victory.  With further information on the scope of uncounted ballots, my prior assessment of the unlikelihood of a change in result went too far, but a change is still unlikely.  The opponents seem to think so, too, because they have spent the resources to file a meritless suit to stop enforcement of Proposition 66 even before it is certified.

Abolitionism Gets Creamed

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California rejected a move to end the death penalty by fat margin, a bigger margin than it did four years ago.  This is in a state Ms. Clinton won overwhelmingly.  The fate of Prop 66, which would expedite death penalty cases, is not decided at this hour, but is leading.

In Nebraska and Oklahoma, pro-death penalty measures won easily.  In other words, abolitionism lost everywhere it could lose, and it wasn't close.

Let there be no doubt who is the leader of tonight's landmark success in the Golden State:  Kent Scheidegger, together with CJLF and the people who back it. It's a privilege to be able to blog with Kent, Mike Rushford, and the CJLF's staff.

California Proposition Returns

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Initial California returns on the ballot propositions look good on the death penalty.  With 10.7% of precincts reporting, repeal Proposition 62 is failing 44.4% to 55.6% while "fix it" Proposition 66 is winning 52.3% to 47.7%.  However, early returns are not always representative of the final result, so it's too soon to celebrate.

Meanwhile, Gov. Brown's Jailbreak Initiative is clearly winning.  The underfunded opposition was evidently unable to inform the people just how bad this ill-conceived measure is.

Update 9:50 PST:  With 21.7% reporting, the results are little changed.

Update 11:05 PST:  With 38.4% reporting --  62 Yes 45.3% to No 54.7% -- 66 Yes 51.5% to No 48.5%

Update Midnight PST:  With slightly over half the vote counted, Proposition 62 remains steadily 9% behind, and I think we can confidently say that the people of California have rejected the repeal and reaffirmed their support for the death penalty yet again.

Proposition 66 remains 3% ahead and is very likely to be the law tomorrow.  It has been many years in the making.

Prop66.jpg

Oliver Roeder posts at the 538 election blog:

As the presidential race unfolds dramatically, the death penalty is quietly having a successful night. The AP has called the vote on the death penalty ballot initiative in Oklahoma; the voters there have adopted a state constitutional amendment strengthening the punishment there, guaranteeing the state the power to execute and the ability to choose the means of execution. And Nebraska results are coming in. With 12 percent reporting, "repeal" leads in the vote on Referendum 426, 52-48. If that result holds, capital punishment will be reintroduced in the state. The state's legislature had eliminated it last year.

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