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Intent, Plagiarism, and Politics

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In criminal law, intent is a big deal.  The prosecutor must often prove not only what the defendant did but his state of mind while he was doing it.  Even though the harm to the victim may be the same, there is a fundamental moral difference between intentional and accidental harm.  "Even a dog distinguishes between stumbled over and being kicked," Justice Holmes famously said.  He had a knack for putting legal concepts into concrete terms everyone can understand.

How do you prove intent?  It's usually clear from the circumstances that an act is intentional.

Intent matters in politics as well.  Aaron Blake at the WaPo's political blog, The Fix, is incredulous of Montana Sen. John Walsh's claim of accidental plagiarism at the Army War College.

It also takes a pretty big suspension of disbelief to think that Walsh lifted those passages without ill intent. Proving someone's intent is always difficult, but believing that this was anything other than an attempt to cheat takes some logical leaps that are pretty hard to make.
We will be addressing intent in a Supreme Court case on threats in the coming term, Elonis v. United States.

Update:  Bill's later post asks whether plagiarism can be a crime.  Could be.  "Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."  10 U.S.C. § 933; see also Parker v. Levy, 417 U.S. 733 (1974).  The military is different.  Funny the statute still says "gentleman."  We've had women officers for a long, long time.

Podcast on Hall v. Florida

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The Federalist Society has a podcast on the U.S. Supreme Court's decision in Hall v. Florida, regarding definition of intellectual disability for the purpose of exemption from capital punishment, by CJLF's Legal Director Kent Scheidegger.
Victor Davis Hanson's essay begins bad and gets a lot worse:

Every once in a while, a criminal case...reflects the immoral course of our current trajectory. Here is an ongoing local criminal case that pretty much sums up what is happening to our culture, laws, and society at large.

Perla Ibeth Vazquez, 27, is now on trial in these parts. On Oct. 21, 2011 (a mere two-and-a-half-years ago?), she was drunk, drove, and killed, according to the Fresno Bee, one "Frank Winslow, 54, a family man and truck driver for Foster Farms who was only a few miles from home when he was killed on Highway 168 near Ashlan Avenue."

The Bee added that the local prosecutor, Steven Wright:

[L]aid the groundwork by telling the jury that Vazquez had pleaded guilty to drunken driving in Tulare County in 2006 and again in Fresno County in 2010. Each time, a judge warned her that if she got drunk and killed someone, she could be charged with murder, Wright said.

Should we laugh or cry at those long-ago judicial "each time" warnings -- given that they assumed that two felony drunk driving convictions were not necessarily reason to think there would be a fated third or fourth? A judge warns her about her own murdering to come? Might he have warned all of us about being her murdered victims to come? 

Substance Abuse Counseling

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We often hear two related narratives from the defense:  That substance abuse rather than greed or malice is at the root of so much crime; and that therefore, instead of jail, what's needed is substance abuse counseling.

I can see why "substance abuse counseling" is right up the defense bar's alley.  You will too when you read this.

The story is replete with the straight-faced howlers for which criminal defense is rightly famous.  Thus, when Ms. Substance Counselor, Sherri Wilkins  --  herself drunk as a skunk  --  plowed into a pedestrian and drove for two miles in city traffic as he died on her windshield, she couldn't help it, because, you see, the victim didn't just step off the pavement. Instead, "it was as if he fell from the sky." The defense "argued [that the deceased man, Phillip] Moreno was drunk and jumped on Wilkins' car and that she panicked."

Yikes.  If the defense lawyer, Ms. Nan Whitfield, doesn't have that much of a sense of right and wrong, at least she has a great sense of humor.


Unreasonable Minds

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The DSM defines a delusion as a false belief based on an incorrect inference about external reality that is firmly held.  If a defendant commits a homicide based on a delusion, can he avail himself of the defense of imperfect self-defense?  As Kent mentioned on Wednesday, the California Supreme Court recently held that the answer is "no" in the case of People v. Elmore.  The court bases it conclusion largely on the idea that an imperfect self-defense requires that a person's unreasonable beliefs must be caused by objective circumstances that he misperceives negligently and that delusional self-defense is properly considered in the realm of the insanity defense.  My sense is that this is mistaken and I want to show why.


Delusional Self-Defense

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A narrowly divided California Supreme Court on Monday rejected a delusional belief in a need for self-defense as a device to reduce a murder charge to manslaughter in People v. Elmore, S188238:

A killing committed because of an unreasonable belief in the need for self-defense is voluntary manslaughter, not murder. "Unreasonable self-defense, also called imperfect self-defense, 'obviates malice because that most culpable of mental states "cannot coexist" with an actual belief that the lethal act was necessary to avoid one's own death or serious injury at the victim's hand.' (People v. Rios (2000) 23 Cal.4th 450, 461.)" (People v. Beltran (2013) 56 Cal.4th 935, 951.)

The question here is whether the doctrine of unreasonable self-defense is available when belief in the need to defend oneself is entirely delusional. We conclude it is not. No state, it appears, recognizes "delusional self-defense" as a theory of manslaughter. We have noted that unreasonable self-defense involves a mistake of fact. (In re Christian S. (1994) 7 Cal.4th 768, 779, fn. 3 (Christian S.).) A purely delusional belief in the need to act in self-defense may be raised as a defense, but that defense is insanity.

For what it's worth, CJLF submitted one of its rare briefs in support of a defendant in Christian S.
How many cases will yesterday's decision in Hall v. Florida actually impact?  Lizette Alvarez and John Schwartz have this article in the NYT estimating "10 to 20," citing anti-death-penalty law professor John Blume for that estimate.  (The article doesn't identify Blume as an advocate for one side on this issue, but he is.) "The death row inmates in this category would generally have I.Q.'s of between 71 and 75. Inmates in that category should now be able to ask for a new hearing that would take into consideration other evidence and a broader range of I.Q. tests."

There are a couple of points to note here.  First, it appears a prominent advocate for the other side implicitly agrees that Hall does not require reconsideration in cases where the inmate's test scores are above 75.  My prior post and the comments to it discussed whether Hall might extend to murderers whose scores are consistently above 75.  I don't think it does yet -- and apparently Blume agrees -- though the Court may still go there in the future.

Does everyone in the 71 to 75 twilight zone automatically get a new hearing?  If that means evidentiary hearing, I don't think so.  Hall himself, for example, put on the experts who testified to the same thing they would testify to after the Supreme Court's decision.  I don't see any reason why the trial judge cannot enter a new decision on the same record, considering the margin of error as the Supreme Court directs.  I expect his decision would be the same.  The state might want a new evidentiary hearing to put on the evidence it didn't think was necessary before, but Hall has already had his shot.
In the 2002 case of Atkins v. Virginia, the Supreme Court decided that the Eighth Amendment to the United States Constitution provides an absolute exemption from capital punishment to a person diagnosable as mentally retarded. I do not doubt that their was a consensus to that effect for persons with moderate or more severe levels of retardation, which is what most people think of when the hear the word "retarded."  I very much doubt that most people would agree as to mild retardation, if they understood the level of functioning that classification represents.

At the same time Atkins found a consensus on that underlying rule, it noted there was "serious disagreement about ... determining which offenders are in fact retarded."  That would seem to mean that there is no constitutional constraint and states can choose their methods, at least within reason.  Today in Hall v. Florida, a bare 5-4 majority of the Supreme Court decided that Florida's method of making that determination is unconstitutional.

Is today's decision a one-time correction of a rule that was, to be frank, hard to defend scientifically?  Or is the opening of a long line of decisions to judicially micromanage the retardation determination, with each twist in the road reaching back to further delay or possibly deny justice in cases fairly tried in accordance with the law in effect at the time?
I am still working on a comment on the substantive aspects of today's Supreme Court decision in Hall v. Florida.  Pending that, I want to make a quick note of a very disturbing choice of words in the opinion.  On page 22 of the slip opinion, it says:

"Florida seeks to execute a man because he scored a 71 instead of 70 on an IQ test."

No, Justice Kennedy, that is most emphatically not why the State of Florida seeks to execute Freddie Lee Hall.  The reasons why were given by the trial judge:

On February 21, 1978, Freddie Lee Hall kidnapped Karol Lea Hurst from the parking lot of a grocery store as she was carrying her packages to her car. He drove her, in her own car, some 18 miles away into another county and into the woods a quarter of a mile off the paved road. There, in the front seat of her car, he forced her to remove her clothes and then he raped her.  He listened to her cry, and he listened to her beg for her life and the life of her unborn child. He watched her write a check for him to cash in return for her life.  Then he beat her--so hard that it tore the flesh of her neck and shoulders through the fabric of her denim jacket. And then he killed her by firing a bullet into the back of her head, either pulling the trigger himself or encouraging another to do it in his place. There is no evidence that has been presented to this Court that reasonably mitigates the aggravated nature of this act.  The aggravating circumstances of this case clearly "outweigh" the mitigating factors.
Karol Hurst was a human being, not a test score. Her 7-month unborn baby was also a human being.  The suffering, the terror, and the death of Karol Hurst and the death of her baby are shamefully minimized and their memory is insulted and denigrated by the flippant, thoughtless, and cruel statement in the opinion that the test score is the reason that Florida seeks to execute Hall.

I can only hope that Justice Kennedy did not write this statement himself but only failed to edit a statement inserted in a draft by a law clerk.  Surely the Justice himself knows better.  We see statements like this all the time in the briefs of defendants and their amici, but it is shocking to see it in the opinion.  This statement is unworthy of the Supreme Court of the United States.

The War Against Women, California Style

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Christopher Evan Hubbart violently raped 40 or so women starting in the 1970's. Eventually, the system took it seriously enough to send him off to a mental hospital. Now, over the state's objections, he has been ordered released by a California judge.

This is not a new story for C&C.  Hubbart was first covered in the News Scan nine months ago.  What drew my attention to the case was today's story on Fox News, which contains the following two sentences (emphasis added):

Hubbart will wear a 24-hour, seven-day-a-week GPS monitor on his ankle and will be accompanied by security people every time he goes out in public for the first six months to a year of his release, [L.A. County District Attorney Jackie] Lacey said. He will be transported to therapy sessions twice a week.

There are really no words to describe a legal system so vacant, so deluded, and so oblivious to the well-being of future victims, that it pretends this man's behavior is going to be changed by "therapy."


What do we know about the interplay between mental illness and violence?  Contrary to the claims made by many mental health professionals, people with mental illness do appear to have an increased risk for violence compared to the general population, although that risk varies depending on how broad or narrow mental illness is defined.  Additionally, the risk is much smaller than generally conceived of by the lay public.  Most importantly, the risk appears strongly tied to the use of drugs and alcohol, the rates of which can be exceedingly high among some populations with mental illness. 

We also know that medication compliance among those with severe mental illness, including schizophrenia and bipolar disorder, tends to be poor.  This if often attributed to a lack of insight by those with these severe illnesses that they indeed have a medical illness that requires consistent treatment.  But another reason less often stated in official publications but discussed professionally is the fact that many psychiatric medications have bad side-effects, including significant weight gain, sedation, and gastrointestinal discomfort to name but a few. 

Despite these limitations, medication remains the primary treatment for most forms of severe mental illness.  In fact, they are vital.  Compared to no treatment at all, consistent use of medication in the treatment of psychotic disorders, such as schizophrenia, is linked with a range of better outcomes, including symptom severity, substance abuse, homelessness, reduced hospitalizations and many others.

Now comes a new study showing that consistent use of medication is associated with a reduction of violence among those with schizophrenia and bipolar disorder.  Let's just let the findings speak for themselves:

Findings

In 2006--09, 40 937 men in Sweden were prescribed antipsychotics or mood stabilisers, of whom 2657 (6·5%) were convicted of a violent crime during the study period. In the same period, 41 710 women were prescribed these drugs, of whom 604 (1·4 %) had convictions for violent crime. Compared with periods when participants were not on medication, violent crime fell by 45% in patients receiving antipsychotics (hazard ratio [HR] 0·55, 95% CI 0·47--0·64) and by 24% in patients prescribed mood stabilisers (0·76, 0·62--0·93). However, we identified potentially important differences by diagnosis--mood stabilisers were associated with a reduced rate of violent crime only in patients with bipolar disorder. The rate of violence reduction for antipsychotics remained between 22% and 29% in sensitivity analyses that used different outcomes (any crime, drug-related crime, less severe crime, and violent arrest), and was stronger in patients who were prescribed higher drug doses than in those prescribed low doses. Notable reductions in violent crime were also recorded for depot medication (HR adjusted for concomitant oral medications 0·60, 95% CI 0·39--0·92).

Aiding, Abetting, and Guns

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The US Supreme Court has decided Rosemond v. United States, exploring yet another facet of the federal law on use of a gun in a crime, 18 U.S.C. § 924(c).  This case involves the "what did he know, and intend, and when did he know/intend it" aspect when an accomplice to a robbery uses a gun.

We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.
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An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.
In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.
Today the Supreme Court heard oral argument in Hall v. Florida, regarding when a murderer is deemed mentally retarded so as to be exempt from execution regardless of how heinous, callous, premeditated, or sadistic his actual crime really was.

In the course of this discussion, there was much talk about the 95% confidence interval in statistics.  Contrary to myth, this 95% number is nothing but a conventionally adopted rule of thumb.  There is nothing magic about it, and there is no compelling reason to use 95% in every circumstance, rather than some other number tailored to the needs of a particular situation.

The rule of thumb goes back to the period between the two world wars and the work of R. A. Fisher.  A common problem in studies is that we find that two things, call them A and B, tend to go together, and we want to get a handle on whether this is coincidence or a true correlation.  The rule of thumb is that we "reject the null hypothesis" and say it's not just a coincidence if the correlation between A and B is strong enough that the chance of it being a coincidence is less than 5%.  This is expressed in journals as p < .05.  A result meeting that criterion is pronounced "statistically significant" and given the coveted asterisk, as if there were a big difference between p = 0.051 and p = 0.049.  (There isn't.)

The quasi-religious devotion to this arbitrary criterion was skewered by the famed psychological statistician Jacob Cohen in a classic article:

The atmosphere that characterizes statistics as applied in the social and biomedical sciences is that of a secular religion [citation], apparently of Judeo-Christian derivation, as it employs as its most powerful icon a six-pointed cross, often presented multiply for enhanced authority.

Defining Retardation, Cont.

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Bill noted earlier today the case of Edward Bracey, who murdered Police Officer Daniel Boyle in North Philadelphia 23 years ago. The article notes that the trial judge set aside the death sentence because Bracey is supposedly retarded, even though he was never considered so during his school years.

In Sarmina's courtroom, Bracey's lawyers pointed to a recent IQ test as proof that he is impaired. The test, given by a defense expert in preparation for the appeal, showed that Bracey's score had plummeted substantially from previous tests.

"It doesn't take a genius to figure it out," Pat Boyle said. "Who would give their best effort on a test if it's going to lead to your execution or life on death row?"

As noted previously on this blog, an IQ test subject can fake low, but he can't fake high.  Given varying scores and an incentive to malinger at the time of the low scores, the high scores are more credible.  Will this be enough for a higher court to reverse?  Tough to get a reversal on a factual finding, but the DA is taking it up.

In other developments, the State of Florida's brief in Hall v. Florida is here, and CJLF's is here.

Update:  Marcia Coyle has this story on the Hall case in the National Law Journal (registration required).

Science Might Help Out After All

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Often nowadays, we hear that science can help "reform" how we go about reaching decisions in criminal justice.  When you read a story like that, remember to consult your decoder: Such science inevitably involves the identification of a previously unheard-of "syndrome" that accounts for why Mr. Nicey belted Grandma over the head with a tire iron to get her purse.  (These syndromes always seem to have a lot of syllables, never a single syllable like "greed").

Another story I hear quite a bit is that science has determined that the human brain develops more slowly than we had believed, so Mr. Nicey is not truly responsible for his behavior until he reaches his mid-twenties mid-thirties mid-sixties.

I ran across an article, however, suggesting that science might actually have discovered a part of the brain with something defense counsel could usefully supply to the client.

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