Recently in Notorious Cases Category

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 ...

The storm of racially-charged controversy surrounding the Charleston Massacre at the Emanuel AME Church in South Carolina last month continues to steal news headlines and remain at the center of heated debate. Addressing the topic of race and racism in the aftermath of this heinous crime is both foreseeable and reasonable, due to the fact that the shooter, Dylann Roof, is white and the nine victims he gunned down were black.  But during tense times when many Americans perceive the country as teetering on the brink of a race war, the liberal agenda injected into the discussion regarding the Charleston Massacre is not so much of a discussion, but rather, pure drivel that only serves to drive a deeper wedge between Americans of different races and promote the sentiment that we are living in a racist America.  Heather MacDonald fires back in this National Review piece titled "The Shameful Liberal Exploitation of the Charleston Massacre" to - as she always does - clear the air for those that refuse to recognize the truth through the media fog.  In response to President Obama's eulogy of Emanuel AME's pastor, the Reverend Clementa C. Pinckney, MacDonald notes:

1 Down, 1 To Go

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William Rashbaum and Benjamin Mueller report for the NYT:

Richard W. Matt, one of the convicted murderers who staged an elaborate escape from New York's largest prison nearly three weeks ago, was shot and killed on Friday by a federal agent, two people with knowledge of the situation said.

The authorities encountered Mr. Matt after the inmate, who was on foot, tried to carjack a camper vehicle near Malone, N.Y., a third person with knowledge of the situation said. The driver sped away and called 911, and law enforcement officers responded.

There was a report of a second episode of gunfire as officers pursued David Sweat, the other inmate. The officers did not see Mr. Sweat, but they heard him running. His whereabouts was unclear.

Boston Marathon Bomber "Apologizes"

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Dzhokhar Tsarnaev apologized to his victims today, at least those (being quite a few) who are still alive to be able to hear it. CNN has the story.

I have probably heard less convincing apologies in my years as a litigator, but I can't recall one offhand.  From the story, few of the victims were convinced either.

The taxpayers will now spend hundreds of thousands or millions pursuing appeals and habeas remedies that knowledgeable people regard as ranging from dubious to absurd.  None will be absurd enough, however, to contest his factual guilt.  If we need to save money in the criminal justice system, this would be a good place to start.

There is not a whole lot left to say about this awful case.  The best capital defense lawyer in the country could not convince a single juror sitting in Boston, of all places, to vote for LWOP.

A sensible system would execute Mr. Tsarnaev promptly and move on to the next abolitionist poster boy, Dylann Roof.  But a sensible system would not tolerate the delay and expense already built in.

The Stars and Bars, Again

The horrific shooting in Charleston has prompted the Governor of South Carolina to call for removal of the Confederate battle flag from the statehouse grounds, Josh Dawsey reports for the WSJ.
Yesterday in the comments to Bill's post, Doug Berman raised the question of whether the Charleston killer should be prosecuted in state or federal court.  I will repost my answer here:

State. No question in my mind.

Unlike the Boston Marathon, this was not a national and international event but rather a local church. Also, there is no reason, at this point, to believe this murderer's attack was any kind of terrorist attack on the United States as a nation, as Tsarnaev's was.

There is no state action here, and any effect on interstate commerce is very tenuous. There was a time, half a century ago, when federal criminal law needed to be stretched to cover local cases of violence by individuals with no state action involved because state and local government was unable or unwilling to deliver justice and thus people were denied equal protection of the laws. Those days are long behind us.
Events are moving right along.  Valerie Bauerlein reports in the WSJ:
If you were fleeing by car from a horrible crime, one for which you are likely to get the death penalty if caught, wouldn't you take scrupulous care to observe all traffic laws so you don't get stopped by the police?  Disregard for the law across the board seems to be such a pervasive character trait in some people that they can't, apparently.

Robert Costa, Lindsey Bever, J. Freedom du Lac and Sari Horwitz report in the WaPo, "Charleston Police Chief Greg Mullen said [Dylann] Roof was arrested during a traffic stop in Shelby, N.C., just after 11 a.m., roughly 14 hours after officers responded to the shooting at Emanuel AME."

The Charleston Church Massacre

Lawyers and law professors have a tendency, I have found over the years, to become entranced by the nuances of the latest Supreme Court decision while overlooking the elephant in front of their eyes.

Last night, a young man named Dylann Roof shot dead nine defenseless people at a prayer and Bible study meeting at the Emanuel AME Church in Charelston, SC. The shooter was white and his victims black; apparently he was motivated by racial hate. The WSJ has the story.

The racial angle is going to get a great deal of coverage, but we need to keep our eye on the ball.  The specific nature of Roof's motive is irrelevant.  As long as he knew right from wrong and could control his actions in light of the difference, this is yet another example of why South Carolina is wise to keep the death penalty (and why states like Nebraska would be wise to bring it back).

The idea that a jail term could be just or proportionate punishment for gunning down nine people at a prayer meeting is not just mistaken.  It's preposterous. This morning, the Supreme Court parsed through the legal tangles in a couple of capital cases, and those will be the stuff of some entries here, including (probably) by me.  But what happened last night in Charleston was  --  let's say it out loud  --  an atrocity.  In the end, the Supreme Court's main job is to facilitate the Framers' understanding that, for some cases, imposing the death penalty is a sober society's right and power.
On May 1, Baltimore State's Attorney Marilyn Mosby staged a glitzy press conference to announce charges against six Baltimore police officers related to the death, in police custody, of small-time drug dealer Freddie Gray.  The announcement was something of a show  --  exactly what you'd expect when a yearning for publicity trumps professional restraint. I have discussed it several times, e.g., here.

Yesterday, the same Marilyn Mosby who was so eager for the limelight that she got on stage with an (admittedly aging) rock star insisted that prosecutors:

"have a duty to ensure a fair and impartial process for all parties involved" and "will not be baited into litigating this case through the media."

See this article from Yahoo News.

That by itself would win Ms. Mosby the Irony of the Year prize I awarded her in the title of this entry, but it goes further.  She discussed the prosecutor's duty to avoid "litigating this case through the media" during her announcement that she is seeking to block the release of the results of Freddie Gray's autopsy.

So let me see if I have this straight.  We don't want actual evidence in the public domain, but we do want world-wide coverage for a presser in which the prosecutor trots out her overheated campaign slogan, "our time has come."

I'm still wondering who the "our" refers to, although I'm not sure I want to know.

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