Recently in Notorious Cases Category

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."

Hillary's Defense of a Child Molester

Hillary Clinton, as a young lawyer, accepted a court appointment to represent a man accused of raping a 12 year-old girl.  He was eventually convicted, I believe, of a lesser charge of sexual battery on a person less than 14 years of age.

The question has arisen whether our view of Hillary should be better or worse because she took this case and how she behaved when she had it.  Some (easily the majority of the reactions I've seen) think we should think better.  The argument is that it is the best of our legal tradition that even the most despised defendant is entitled to a faithful and energetic ally as he  faces the power of the state.  The most frequently given example is John Adams' defense of British soldiers accused of brutality in the Boston Massacre.

The minority point of view is that Hillary's defense of the child molester was at best a display of callousness; a moral holiday from the consequences to the victim; a choice she did not need to make; and, in the course of the actual defense, a demonstration of the truth-optional attitude for which Hillary (and in my view, a big segment of criminal defense generally) has become known.

There are two among many articles, here and here, that discuss this episode in a way favorable to Hillary.  Without for the moment going into my view of it (less favorable), I'm seeking readers' views.  There are a number of questions here.  A very, very non-exhaustive list is:  Does or should the underlying truth about the client's behavior affect the lawyer's decision about how, and whether, to represent? Does or should a defense lawyer  --  as an attorney, a citizen, or a human being  -- have any moral obligation to the child victim?  To potential (probable?) future victims if the client wins an erroneous acquittal and is thus emboldened?  Should the lawyer undertake intentionally deceitful (even if not directly unethical) tactics in order to bring about such an acquittal?  Or any acquittal?  Is it a good or a bad thing to allow lawyers to have a "conscientious objection" exemption from a court appointment that makes them morally queasy?  Or is conscientious objection limited to military duty?

Two Years After the Lies, the Truth

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From the Washington Post:

A federal judge has dismissed a $41.5 million lawsuit that protesters in Ferguson, Mo., had filed against police, the city and the county, alleging that police used excessive force against them during unrest that erupted after a white police officer shot an unarmed black teenager in August 2014.

In a 74-page decision, Judge Henry Autrey ruled that plaintiffs "have completely failed to present any credible evidence" that any actions by police "were taken with malice or were committed in bad faith" during protests in the wake of the death of 18-year-old Michael Brown in Ferguson. Brown was killed by Officer Darren Wilson. A grand jury declined to indict Wilson in Brown's death.

Autrey wrote that police gave numerous orders for the protesters to disperse and that police "clearly had argued probable cause to arrest any individual" who refused to comply with the orders.

The story is here.

Earlier this summer, the lenient sentence given to Stanford student Brock Turner for a sexual assault on an unconscious young woman sparked national outrage.  Friday, he was released from jail after serving only half of that.  Paul Elias has this story for AP, with extensive background on the case.

What lessons should we draw from this double outrage?

First, the excessively lenient sentence demonstrates why we cannot vest too much discretion to judges to grant leniency.  In other words, it demonstrates--conclusively, in my mind--that we will always need "mandatory minimums" in some form for some crimes.

Second, Turner's release in 3 months when sentenced to 6 demonstrates that we need to be very careful with "credits" against sentences and award them only when they serve an important function.

Third, given the number of people guilty of serious crimes who are now sentenced to county jail in California, it is imperative that we build enough jail capacity to hold them for every single day for which they are sentenced, reduced only by those judiciously awarded credits.
The AP reports that President Obama today met with the family of Alton Sterling, a black man shot last month by Baton Rouge police.  The story mentions (in one sentence) that he also met with the families of the three policemen ambushed in "response" to that killing.

Because I do not adequately know the circumstances of the Sterling shooting, I'm not going to comment on the prudence of the President's meeting with his relatives.  The nearly simultaneous meeting with the officers' families implies a moral equivalence of which I am skeptical, but, again, not in a position to say much more than that.

I do have a question, however:  Where is Obama's meeting with the families of Erveena Hammonds and her daughters, aged seven and ten?  They were knifed to death in January by Wendell Callahan, who had been in federal prison but was released early under the Fair Sentencing Act, gushingly supported and signed by Mr. Obama on August 3, 2010. But for Callahan's early release under that bill, Ms. Hammonds and her little girls would be alive today.

Their murder scene was so gruesome that responding police had to be given counseling afterward.  Apart from the FSA, Callahan's windfall early release was facilitated by the false representation from Obama's US Attorney's Office in Columbus, Ohio that Callahan did not present a danger to the community. 

As we have seen before, Mr. Obama is happy to blame local police, but takes not a shred of responsibility for grotesque child murders his Presidential signature, and the lies from his Justice Department, facilitated.

The Case for Disbarment Just Got Stronger

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I have discussed before (e.g., here and here) the question whether State's Attorney Marilyn Mosby should be disbarred.  I oppose disbarment simply because she failed to win a conviction; acquittals are contemplated by any system that interposes a neutral trier of fact between the prosecutor and the accused.  I have also opposed disbarment simply because of Ms. Mosby's partisan and grandstanding behavior; the remedy is too potent for the offense (and comes from the wrong source).

Today, however, I saw a story that makes the case for disbarment considerably stronger:

Leaked text messages between one of Baltimore State's Attorney Marilyn Mosby's deputies and the lead investigator in the Freddie Gray case are raising new concerns about whether politics played a role in the decision to charge six officers with his death.

Fox News' Trace Gallagher reported that the leaked messages suggest that the prosecutors planned to charge the officers, regardless of what the evidence showed.

John Hinckley Released

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John Hinckley, who attempted to assassinate President Reagan in March 1981 but was found not guilty by reason of insanity, has been ordered released.  The judge, US District Judge Paul Friedman, found that Hinckley does not pose a danger to others.  One can only hope this prediction is true.  It didn't work out so well with Wendell Callahan.

The Hinckley verdict was not well received, and proved to be the spark for tightening up the insanity defense.  That defense is now seldom tried, and it almost never works.  It's not impossible to hoodwink a jury, but it's not that easy, either. 

Marilyn Mosby Gets the Message

The Baltimore Sun reports this morning:

Prosecutors dropped all remaining charges against three Baltimore police officers accused in the arrest and death of Freddie Gray in a downtown courtroom on Wednesday morning, concluding one of the most high-profile criminal cases in Baltimore history.

The startling move was an apparent acknowledgement of the unlikelihood of a conviction following the acquittals of three other officers on similar and more serious charges by Circuit Judge Barry G. Williams, who was expected to preside over the remaining trials as well.

It also means the office of Baltimore State's Attorney Marilyn J. Mosby will secure no convictions in the case after more than a year of dogged fighting, against increasingly heavy odds, to hold someone criminally accountable in Gray's death.

Officer William Porter's trial ended with a hung jury and a mistrial in December, before Williams acquitted Officers Edward Nero and Caesar Goodson and Lt. Brian Rice at bench trials in May, June, and July, respectively.

This was the right thing to do, morally and legally.  The power to prosecute is too potent to be used as a political or social tool.  Legally, the case just wasn't there. And, as a practical matter, Ms. Mosby might have side-stepped a disbarment proceeding as the result of today's exercise in prudence.

Marilyn Mosby fiddles while Baltimore burns:

A man was fatally shot Tuesday morning in West Baltimore, becoming the city's 31st homicide victim this month.

The man, who police have been unable to identify, was killed about 10:13 a.m. in the 2100 block of Garrison Boulevard, north of Gwynns Falls Park, police said.

Prior to the spike in violence last year following the death of Freddie Gray, the city had not recorded 30 homicides in a month since the 1990s. In 2015, the city had five months with more than 30 homicides. July is the first month this year that the city reached that mark.

The people getting killed in this carnage are overwhelmingly, and perhaps exclusively, black.  But "compassion" and "justice" dictate targeting the front line against crime.

Hello!  If black lives actually mattered to Black Lives Matter, I would donate $10,000 to Debbie Wasserman Schultz Stephanie Rawlings-Blake.

Should Marilyn Mosby Be Disbarred?

Al Regnery presents a strong case in behalf of the petition to disbar Baltimore State's Attorney Marilyn Mosby.  The points he makes below bear particular emphasis:

[Ms.] Mosby has done enormous damage to the jurisdiction that entrusted her with [her] office. First is the staggering increase in crime in Baltimore since the Freddie Gray incident - much of it attributable to the "Ferguson effect" of police reluctance to put themselves in danger of prosecution. She has also made it more difficult for other prosecutors to bring difficult cases, since she has generated distrust and suspicion of the justice system among her constituents. Even beyond that, however, is the damage she has done, and continues to do to the justice system itself, which relies on public trust and reliance, by the people affected by it, that it is run professionally, without bias, and without political interference.

The second and third points are especially telling, because they go to the long term, and thus less visible, consequences of Ms. Mosby's behavior.

The BLM movement often warns us that the system lacks the people's trust.  But I hear nothing from it when the most basic form of trust the public needs in prosecutors  --  that politics is out and law is in  --  is dumped over the side, replaced by a floridly political approach to wielding this awesome power.
William Horobin and Inti Landauro report for the WSJ:

The man who killed 84 people in Nice on Bastille Day appeared to be planning the attack since last year and had the help of several people, France's top antiterror prosecutor said Thursday.

Investigative magistrates on Thursday were interrogating five people suspected of providing support to 31-year-old Mohamed Lahouaiej Bouhlel, said Paris Prosecutor François Molins, who laid out a timeline suggesting the attacker and his suspected accomplices had embraced Islamic extremism as early as the Charlie Hebdo attack in January of last year.

The details disclosed by Mr. Molins threaten to fuel public anger at French President François Hollande and his ministers, who have spent days defending their handling of the terror attack.

The new evidence appears to contradict claims made by top French officials immediately after the rampage that Lahouaiej Bouhlel was radicalized in a matter of weeks, leaving security services little chance of stopping him when he plowed through throngs of revelers on Bastille Day with a 21-ton truck.

Instead, Mr. Molins suggested Lahouaiej Bouhlel may have conducted surveillance on his target a year before he acted and communicated more than a thousand times with suspected accomplices.
Accomplices who share the specific intent are just as culpable as the triggerman.  Presumably some of them will be caught.  What will France do then?   Will they do like Norway with Anders Breivik and sentence them to less than four months in prison per life taken?

Are you really sure you don't want capital punishment, mes amis?
And yet another wrongly maligned prosecutor is exonerated.

AP reports from Manassas, Virginia:

For much of the last 15 years, Justin Wolfe was both a death row inmate and a cause célèbre. His supporters, as well as a federal judge who heard his appeal, believed he was a victim of malicious prosecutors who covered up the truth in an effort to execute an innocent man.

Now Wolfe's 15-year legal saga -- which at one point had him days from execution and later on the brink of total exoneration and freedom -- has concluded with a 41-year prison sentence and an admission that prosecutors had it right all along.
*                       *                    *
After years of denying responsibility for the 2001 murder of Daniel Petrole, Wolfe on Wednesday apologized to Petrole's family in a packed Manassas courtroom.

The Collateral Consequences of Acquittal

Those who see criminals as victims tend frequently to complain about the collateral consequences of conviction.  And while it's true that there are likely to be such consequences if you're found guilty of, for example, being a smack pusher, con artist, strong arm or thief, etc., our opponents misapprehend the true source of the problem.  

It's not that the offender has an adverse adjudication (although certainly that's in the mix). It's the behavior that led to the adjudication in the first place. An adjudication of criminal conduct provides a prospective landlord or employer with a more reliable than usual indication of potential problems any sane person in that position would want to know about  --  and, in this day and time, probably has to know about to avoid liability if an employee whose, shall we say, behavioral anomalies the employer could and should have learned about through due diligence  --  but didn't  --  goes on to harm a co-worker or customer.

Who do you think will be on the hook for that?

But I digress.  Those showing the most concern about the collateral consequences of conviction oddly show none at all about the just-in-the-news collateral consequences of acquittal.

Now you might be saying:  Hold on there.  How can there be collateral consequences when you're acquitted?
Legal academia is famous for its criticism of prosecutorial high-handedness. Employing the power of the state to serve the social or political goals of the prosecutor gets scorched as the fast road to, at best, arbitrary government  -- and, at worst, tyranny.

This view is 100% correct. I've said this before, albeit in a context not necessarily beloved by liberals.  Prosecutors are servants of the law, not vice versa.

What are we to make, then, of this remark from law professor and former public defender David Jaros of the University of Baltimore's School of Law (quoted in the Washington Post concerning Marilyn Mosby's conduct of the "no-convictions-anywhere" Freddie Gray prosecutions):

If [a prosecutor] believes a crime was committed and they believe they're sending a valuable message to the community about the value of a poor black man's life or what is appropriate responsibility for a police officer, there are benefits of this trial that can't be measured in convictions and acquittals. 

How's that?  Legal guilt is over there somewhere?  The important mission is for the prosecutor to decide what's "appropriate responsibility?"

Gads.  And here I spent 18 years as an Assistant US Attorney and never realized the extent of my Regal Portfolio.  

Amanda Lee Myers reports for AP:

Minutes after former Los Angeles County Sheriff Lee Baca acknowledged failing the public by lying to federal authorities investigating jail beatings, a judge overseeing his corruption case shocked a packed courtroom Monday by rejecting the ex-lawman's plea agreement as too lenient.

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