Recently in Notorious Cases Category

Former USAO appellate chief turned National Review analyst Andy McCarthy uses the curious Dennis Hastert case to pull back the curtain on what is really going on with "sentencing reform."  He notes:

Mandatory minimum sentences and strict sentencing guidelines for serious offenses were enacted precisely because judges, often in collusion with prosecutors [Ed. note: and virtually always at the urging of defense counsel], were systematically releasing serious offenders, allowing them to continue preying on society. While the "man-mins" and guidelines helped dramatically reduce crime, the left-leaning legal profession agitated against them. One result is "fact" pleading -- the sort of shenanigans that we see in the Hastert case: a willfully false rendition of the facts in order to sidestep sentencing enhancements required by law.

That is what sentencing "reform" has in store for us. The proposals may call for careful judicial fact finding before a felon is released. But the law already calls for careful judicial fact finding when the felon is sentenced. What we frequently get, instead, is careful judicial evasion -- often aided and abetted, it must be noted, by the Justice Department. It may be that careful fact finding would result in the release of some prisoners who should be released; but the breed of "fact" finding we are apt to get from sentencing "reform" will result in the mass release of incorrigible, violent criminals.

McCarthy's article is a goldmine about how the federal criminal justice system works on the inside, and well worth your read.  Sentencing reform is getting as far as it is only because the public has no idea about how many breaks for criminals are already built into the system, though hidden from view.
Tyrone Howard, arrested for the murder of NYPD officer Randolph Holder, is described as a "career criminal" in this report by the NY CBS affiliate and Associated Press.

Police said Howard's arrest record goes back to when he was 13. In sum, the allegations included assault, robbery and a total of nine for the criminal sale of a controlled substance. Howard also had a record of two arrests for the criminal possession of marijuana, and others for public lewdness, criminal trespass and conspiracy.

Last year, Howard was placed in a drug diversion program meant to spare jail time for drug offenders to ease jail overcrowding. Police Commissioner Bill Bratton said that move was an incredibly bad idea.

"If ever there was a candidate for someone not to be diverted, it's this guy," Bratton said. "He's the poster boy for not being diverted."
Easy enough to say after the fact, but did he meet the criteria for these programs as they are actually administered?

Baltimore Protesters Demand Due Process

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There was a hearing today in Baltimore in the Freddie Gray homicide case.  The court refused defense requests to dismiss the charges or remove States Attorney Marilyn Mosby.  It did, however, grant separate trials to the defendants.

Outside the courthouse, protesters demanded due process for the accused, who are all police officers.  They carried signs with slogans, "No Case Should Be a Circus," "Honor the Presumption of Innocence," and "No Trial in the Streets."  

Members of the media interviewed a number of protesters, who were quoted as saying such things as, "We'll accept an acquittal peacefully if that's what happens," and, "All defendants should have a chance to make their case before people condemn them."

The article covering it states............ummmm............well................maybe I'm getting this wrong.  The reaction I described is only what we'd see from academia or the ACLU for an axe murderer or child rapist.  Or maybe Mumia Abu Jamal.  The actual protest today  --  which wasn't much compared to the arson and riots we saw earlier  --  was, well, different from my description, and was covered in this local CBS News story.

If there was even a slight mention of Due Process, I missed it.

A Stay for Virginia Ex-Governor

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Jess Bravin reports for the WSJ:

WASHINGTON--The Supreme Court Monday granted former Virginia Gov. Bob McDonnell's plea to avoid prison while he pursues a last-ditch appeal of his convictions on federal corruption charges.

Mr. McDonnell was sentenced to two years' imprisonment following his January conviction on what federal prosecutors characterized as a "quid pro quo bribery scheme" with a Virginia businessman seeking to promote a dietary supplement product.

In an unsigned order, the justices said Mr. McDonnell need not report to prison while he prepares his Supreme Court appeal, which the justices will then consider whether to hear.
Chief Justice Roberts issued a stay pending consideration of the government's response last Monday.  He then referred the stay application to the full court, which granted it today.

This post back in 2012 discusses the quirks of the jurisdiction of individual Justices and the full Court to issue stays.
Mixing politics and the power to prosecute is the fast road to tyranny.  That is one reason I have been unstinting in my criticism both of Eric Holder's politicization of DOJ and of the reckless grandstanding by Baltimore State's Attorney Marilyn Mosby in the Freddie Gray case, see here, here, and here.

Even Ms. Mosby, however, looks good by comparison to the federal prosecutors whose jaw-dropping unethical behavior resulted in well deserved judicial rebukes from both the federal district court and, now, the Fifth Circuit (opinion here).

It's impossible to summarize in a single sentence the extent or the sleaze of the prosecutors' stunts, but let me start by saying that they essentially tried a prominent federal case against seven New Orleans police officers  --  four of them black or Hispanic  --  by tweet, then repeatedly lied about it.

Sal Perricone, a high-ranking prosecutor in the U.S. Attorney's Office, using a fake name, posted commentary on, the website of the Times-Picayune, that (in the words of the Court of Appeals) "castigated the defendants and their lawyers and repeatedly chastised the New Orleans Police Department as a fish 'rotten from the head down.'"

Perricone was joined in this outrageous misconduct by Jan Mann, the first assistant to the U.S. attorney.

Meanwhile, back in Washington, Karla Dobinski, a veteran of Holder's Civil Rights Division, also posted inflammatory commentary under at least one assumed name. Ironically -- appallingly -- Dobinsky was part of the DOJ "taint team" in this case. As such, she was assigned to protect the civil rights of the indicted defendants. 

The whole appalling story is here.

On the evening of June 17 of this year, white supremacist Dylann Roof, after sitting in a black church for about an hour, pulled out a Glock .41 handgun with hollow-point bullets and murdered nine black people who had been in a prayer and Bible study group. No sane person doubts either that he did it, that he knew what he was doing, that he thought about his actions, or that the motive was anything other than racial hate. It was a 21st Century mass lynching, there is no other honest name for it.

South Carolina, like the great majority of states, has the death penalty.  Even if it should be abolished in the future because of the risk of executing the innocent, or because it is (or is said to be) employed  discriminatorily against African Americans, or because it takes a long time and costs a lot, will any abolitionists come off their "facts-never-matter" stance to support its use in this utterly clear and grotesque case?

They've done it before.  In the Oklahoma City bombing, a USA Today/CNN/Gallup poll found that a majority of those typically against capital punishment on principle supported it for Timothy McVeigh.  The crime was just too much of an assault on the basics of civilized life.

Isn't that also true here?  Have we not reached the point in America where we are going to say no to lynching  --  to say no and mean it? To understand that the country has passed a turning point toward ensuring dignity regardless of race? To understand that even if in the case of the "ordinary" mass murder we should accept a prison term, we have come too far and paid too much to do that here?

As a general matter, tolerance, understood as a generous turn of mind, is a good thing. But it depends on what we are being asked to tolerate.  There should be no tolerance for Dylann Roof's attempt to drag America back to a hideous past.  I will be looking for abolitionists to do some of the critical, reflective thinking they say they value and, in this case, support the death penalty.

The Lies at the Base of "Black Lives Matter"

The "Black Lives Matter" Movement took root a little more than a year ago in Ferguson, Mo.  A white policeman, Darren Wilson, shot a blameless and unarmed black teenager, Michael Brown, as Brown had his hands up, trying to surrender (hence the Movement's first slogan, "Hands Up, Don't Shoot").  Thereafter, Wilson walked up to Brown, now prone, and, as noted in stories briefly recounted in this New Yorker article, shot him in the back.

Or so is the fable.  It's a pack of lies, and was from the day it started. The point of BLM was never to tell the truth, so when the truth came out  --  as it did in two grand jury investigations, including one by Eric Holder's Justice Department  --  it was dismissed. The point was always something different:  To intimidate the police and thus benefit criminals.

There's evidence that it's worked.  Police work has become more fraught.  Some cops say they're pulling back.  When the State's Attorney indicts the police and the city's mayor says rioters must be given "space to destroy," what were we expecting?  We should have been expecting, e.g., Baltimore, and a spike in murders coast-to-coast, which is what we got and are getting.

The wretched irony in this is, of course, that black lives do matter, and that blacks, who disproportionately bear the brunt of poverty, depend more than better-off whites for the basic protection policing provides.  In part for that reason, I repeat the following entry on PowerLine, a bitterly humorous tribute to the insidious deceit and tragic carnage of "Black Lives Matter."
Sadie Gurman reports for AP:

Colorado theater shooter James Holmes will be sentenced to life in prison without parole after a jury failed to agree Friday on whether he should get the death penalty for his murderous attack on a packed movie premiere.

The nine women and three men said they could not reach a unanimous verdict on each of the murder counts. That automatically eliminates the death penalty for the failed neuroscientist, who blamed his calculated murders of 12 people on mental illness.

A rule of law that says the opinion of one juror can trump the opinion of the other eleven borders on insane.  We would never consent to such a rule for the guilt verdict.  In no state of the union does a jury hung 11-1 for conviction produce an acquittal.  Why does any state have such a rule for the penalty phase?

States that have this crazy rule need to get rid of it.  A hung jury on penalty should trigger a retrial with a new jury, as it does in California and Arizona.

Last Wednesday was the 20th anniversary of the murders of two toddlers, Michael and Alex Smith, by their mother, Susan Smith.  Ms. Smith was having an affair and hoped to run off with a man who didn't want to be burdened with kids  --  who can, after all, be quite a load at that age.  She dealt with this by strapping them in seat belts in her car, which she then rolled into a lake.  

In one of the more spectacular miscarriages of justice I can remember, the jury rejected a death sentence and gave her life.

She is taking full advantage.  This story, from ABC news, is chock full of lessons for those of us interested in criminal law, and capital cases in particular. 

Pollard Release Imminent?

Devlin Barrett reports for the WSJ:

The Obama administration is preparing to release convicted Israeli spy Jonathan Pollard from prison, according to U.S. officials, some of whom hope the move will smooth relations with Israel in the wake of the Iran nuclear deal.

Such a decision would end a decadeslong fight over Mr. Pollard, who was arrested on charges of spying for Israel in 1985 and later sentenced to life in prison. The case has long been a source of tension between the U.S. and Israel, which has argued that a life sentence for spying on behalf of a close U.S. partner is too harsh. Israel has for years sought Mr. Pollard's early release, only to be rejected by the U.S.

Now, some U.S. officials are pushing for Mr. Pollard's release in a matter of weeks. Others expect it could take months, possibly until his parole consideration date in November.
Such a deal for Israel.  First we sign the most toothless agreement since Neville Chamberlain came back from Munich in 1938 waving a document and claiming "peace in our time," an agreement that practically guarantees that a country determined to wipe Israel off the map will acquire nuclear weapons.  But not to worry, we will make it up by releasing one spy.
The Supreme Court established the basic framework of capital sentencing in the mid-1970s and then tinkered with it for some years thereafter.  Under this framework, a state cannot make all murderers eligible to even be considered for the death penalty.  There must be some additional factor beyond the basic requirements of murder.  It has to be a reasonably objective one.  "Especially heinous, atrocious, and cruel" won't do.

The methods vary by state.  Texas defined a higher degree of murder called "capital murder."  Most states have a designated list of "aggravating circumstances."  California calls its list "special circumstances" because we just have to be different.

In some states the plus factors are found concurrently with guilt.  In others they are decided along with the decision on penalty.  Colorado apparently "trifurcates" its capital trials, sandwiching an "aggravating factor" phase between the guilt and penalty phases.  (California does that with the prior murder circumstance only.  All the rest are decided concurrently with guilt.)

Are the following factors true in the case of the Aurora shooting?

• Intentionally killing a child under the age of 12.

• Killing more than two people during the same criminal act

• Creating a grave risk of death to people other than the 12 victims.

• Committing the murders in an especially heinous, cruel or depraved manner.

• Ambushing the victims.

The jury did not find the first one, apparently not satisfied on the specific intent requirement.  What's that fourth one?  Hopefully the jury got a "narrowing" instruction to define that more precisely.

Jordan Steffen and John Ingold have this story in the Denver Post.  Maria LaGanga has this story in the LA Times.

Partial Reversal for Blagojevich

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Rod Blagojevich, former governor of the state where about as many former governors are felons as not, won a partial reversal from the Seventh Circuit today.  From United States v. Blagojevich, USCA 7, No. 11-3853:

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich's own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution's evidence and to find that Blagojevich acted with the knowledge required for conviction.

But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich's proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President‑elect for a private‑sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.

Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 502 U.S. 46 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one‑line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60-62 (2008) (an error of this kind is not "structural").)

Aurora Verdict

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Sadie Gurman reports for AP:

CENTENNIAL, Colo. (AP) -- Jurors convicted Colorado theater shooter James Holmes on Thursday in the chilling 2012 attack on defenseless moviegoers at a midnight Batman premiere, rejecting defense arguments that the former graduate student was insane and driven to murder by delusions.

The 27-year-old Holmes, who had been working toward his Ph.D. in neuroscience, could get the death penalty for the massacre that left 12 people dead and dozens of others wounded.

Jurors took about 12 hours over a day and a half to review all 165 charges. The same panel must now decide whether Holmes should pay with his life.

How Dylann Roof Got the Murder Weapon

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Scott Johnson reports:

After Dylann Roof murdered nine pastors and churchgoers in the course of Bible study in Charleston, President Obama couldn't wait to use the occasion for his narrow political purposes. "Let's be clear," he said with urgency in his voice. "At some point we as a country will have to reckon with the fact that this type of mass violence ... doesn't happen in other places with this kind of frequency. And it is in our power to do something about it." The implication, of course, was that additional gun control legislation was required but that his political opponents refused to see the light.

Now we learn in whose power it was to do something about it, and it wasn't anyone Obama was talking about. The Washington Post reports: "Dylann Roof, who is accused of killing nine people at a church in South Carolina three weeks ago, was only able to purchase the gun used in the attack because of breakdowns in the FBI's background-check system, FBI Director James B. Comey said Friday." The White House, of course, declines to comment.

I said at the time of his nomination that Jim Comey was a man of integrity.  I feel vindicated today.  As to his boss, I have as much comment as the White House.

Stars and Bars Update

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Only marginally on topic, I know, but ...

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