Recently in Equal Protection Category

Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.
Here at C&C we have been strongly critical of the Black Lives Matter movement, and we will continue to be.  That group is not part of the solution, it is a major part of the problem.

Just to be clear, though, we do not deny that there are legitimate complaints of discriminatory law enforcement.  In this video, Senator Tim Scott describes his experiences.
Harvard Law Professor Alan Dershowitz is not someone we agree with often, but his comments on Megyn Kelly's show last night are notable.  The video is here.  The transcript is here and copied, with edits, after the break.

[Editors Note:  Unknown to either of us, Bill and I were posting on the same subject at the same time.  That's okay.  I will leave them both up.  There is overlap, but also some differences in the posts.]

Reversal in an Ugly Batson Case

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When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.
The North Carolina Supreme Court has sent back to the trial court the cases on that state's ill-conceived, misnamed, and since repealed "Racial Justice Act."  The purpose of that act is to defeat rather than promote justice, and it allows murderers to overturn their sentences based on the kind of statistics-based arguments rejected by the U.S. Supreme Court in McCleskey v. Kemp.  (See my law review article for background on the racial statistics controversy.)

Jacob Gershman has this article in the WSJ.

The state supreme court vacated the decisions in favor of the murderers, but it did so on the narrow ground that the trial judge did not allow the prosecution sufficient time to gather evidence to rebut a large study submitted to support the claim.  That means the case goes on. 

Andrew Wolfson has this article in the Courier-Journal centered on Facebook posts made by Jefferson Circuit Judge Olu Stevens regarding the racial makeup of juries, and the subsequent debate that erupted between him and Commonwealth's Attorney Tom Wine.  The debate begs the question of whether or not it is proper for a judge, who has taken an oath to be impartial, to publicly blast attorneys or opine on legal issues on social media.  Some background to the story:

The fiery dispute between Stephens and Wine arose when the judge dismissed a jury panel in November 2014 because it had no black members - even though the prosecution had nothing to do with that result.
Wine then asked the Kentucky Supreme Court to clarify whether judges have that power when there is no evidence minorities have been removed for discriminatory reasons. Stephens in turn took to his Facebook page to blast Wine as trying to "protect the right to impanel all-white juries" in a series of posts that suggested the prosecutor is racist.

Stevens said that while the panel was drawn at random - and the black juror was struck at random - the defendant was denied a right to a jury representative of a county in which about 21 percent of residents are black.
Here is some of what Judge Stevens had to say on Facebook:

Spoilation of Evidence and Secretary Clinton

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CJLF is not a partisan organization, although it's obvious it more frequently sides with Republicans than Democrats, particularly on matters of judicial selection.  I, as a guest contributor, have not been shy about strongly taking on such Republican stalwarts as Rand Paul, Mike Lee, and occasionally my brilliant friend from years ago  --  and a courageous man in my view  --  Sen. Ted Cruz. I have had very little to say about some prominent Democrats, in particular leading presidential candidate Hillary Clinton.

This is, however, a criminal law blog, and one of the most important factors in preserving the legitimacy and public repute of criminal law is that it be applied as equitably as possible toward both the strong and the weak.  Thus, when powerful but corrupt Republicans like George Ryan, Duke Cunningham and Bernie Kerick got sentenced to prison, my reaction was:  Fine.  They want to behave that way, they can live with the consequences.  

Same deal with the Democrats.  Today, I could not help but take note of this story, "Clinton Lawyer Says Her Server Was Wiped Clean."  

Who Wants A Larger Police Presence?

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From Gallup today:

Which would you prefer to see in your local area -- [ROTATED: a larger police presence than currently exists, no change, (or) a smaller police presence than currently exists]?

The report notes:

In general, though, majorities of these major groups profess wanting "no change" in the police presence in their local community. However, blacks are the least likely to say this at 51%, compared with Hispanics at 59% and whites at 74%. Only small percentages of any group say they want a smaller police presence than currently exists.
I suspect that the difference is not race as such but rather the likelihood of living in a high crime area.  If Gallup, or any poll, asks this question again, it would be interesting to record precisely where each respondent lives and then cross-tab that with actual local crime rate.
Edward Blum notes at the WSJ, "Fifty years ago, on Aug. 6, 1965, President Lyndon Johnson signed the Voting Rights Act, legislation he would later identify as the most important of his political career."

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