Recently in Notorious Cases Category

Michael Graczyk of AP reports on two more people who are not convinced by Liebman's claim that the executed Carlos DeLuna was innocent.  (See prior post here.)  The two are the lawyers who tried the case on both sides, the prosecutor and DeLuna's own lawyer.

AP has a story on a release of evidence in the Martin/Zimmerman case.  Oddly, the article emphasizes that Martin had THC in his system, which strikes me as one of the less important facts.  (If he had been using a drug that tends to make people violent, that would be more salient, but he wasn't.)

More important is the statement of a witness to the fight.  Also, there are some unflattering statements of two acquaintances of Zimmerman.

Update:  This post originally linked to an AP story on the WaPo site, but now the link goes to the WaPo's own story by Sari Horwitz and Stephanie McCrummen.  On page 2 is the disappointing answer to the question I've been asking:

A police report also concluded that the voice screaming in the background of a recorded 911 call placed by a resident was Zimmerman, "who was apparently yelling for help as he was being battered by Trayvon Martin."

But an FBI audio analysis of that crucial call could not determine whether it was Martin or Zimmerman who was screaming, because of the poor quality of the recording and the "extreme emotional state" of the person screaming, an FBI report said.

A new AP story by Kyle Hightower and Mike Schneider is here, emphasizing that the evidence is "a mixed bag."

There is a lot of buzz about a case from Corpus Christi, Texas.  Lifelong anti-death-penalty advocate James Liebman claims he has proven that Carlos DeLuna is innocent of the crime for which he was executed.  As with the Willingham case, the view from the local scene is very different from what you read in national media.  Michelle Villareal has this story in the Corpus Christi Caller Times.

CORPUS CHRISTI -- A study released Tuesday may have sparked debate about the death penalty but those closest to the case say researchers aren't raising new questions about the 1983 capital murder case and execution.

The 400-page study, "Los Tocayos Carlos," in the Columbia Human Rights Law Review argues that Carlos DeLuna wrongfully was executed in 1989.

DeLuna was convicted of fatally stabbing Wanda Lopez on Feb. 4, 1983, during a robbery of a Corpus Christi convenience store. He testified at his trial, claiming a man named Carlos Hernandez killed Lopez.

The Columbia study asserts that Hernandez committed the crime and DeLuna was innocent.

Paul Rivera, a Corpus Christi police investigator who transported DeLuna between city and county jails, said the study's researchers asked him years ago to reread the DeLuna case.

Rivera said he took his time combing through the investigation reports and transcripts. In the end, he drew the same conclusion.

"I know exactly what happened," he said. "DeLuna stabbed Wanda Lopez when she was on the phone and she was screaming for help."

Rivera, who investigated more than 200 murders in Corpus Christi, said at least nine of those people were on death row and no one questioned his investigations or methods before DeLuna's case.

DeLuna received the appropriate punishment, he said.

When a high profile defendant is arrested in some scandal and, after a lifetime of craving and getting publicity, won't say beans to the media, what do we hear from defense counsel?

This blog is not about social issues, and I'm not going to touch with the proverbial ten foot pole the swirling controversy about gay marriage and President Obama's recent change of position.  But issues related to homosexuality are much in the news, from gay bullying in middle school to the notorious case of a Rutgers student, Dharun Ravi, who was convicted on 24 (of 35) counts of secretly recording his roommate erotically kissing another male.  Ravi thereafter had a "viewing party," inviting a few buddies over to laugh at his lovelorn roommate.  The roommate, Tyler Clementi, didn't take it so well.  Overcome by the shame and humiliation Ravi intended to produce, he killed himself.

Never one to abjure taxpayer financed grandstanding, Gov. Lincoln Chafee apparently plans to seek Supreme Court review of the First Circuit's en banc decision that Rhode Island must hand over to federal authorities Jason Pleau, the fellow accused of gunning down a gas station manager in 2010.  Chafee had previously refused to do so on the theory, I guess, that Rhode Island's "states rights" ought to be used to make the state over into a sanctuary for murder.  (The federal prosecutor may seek the death penalty, which is not available in Rhode Island). 

The Washington Post features an article describing defense counsels' antics at the military commission trial of Khalid Sheik Mohammed and his confederates for plotting 9-11.  The story thus far is, perhaps not surprisingly once you think about it, somewhat standard fare:  Counsel want to talk about everything except what their clients were up to.  That's routine stuff for criminal defense.  For all you could tell from counsels' interviews with the press, they might as well be talking about knocking over the gas station.  The enhanced opportunities for street theater are not that far off, however.

[Defense lawyer Cheryl] Bormann also asked in court that a female member of the prosecution team dress more modestly, saying her clothing was a distraction for the defendants and might cause them to "commit a sin" by looking at her. Three women on the prosecution side wore knee-length skirts.

A couple quick notes on Ninth Circuit decisions this morning.

Arizona murderer David Scott Detrich hit the quinella in the selection of his Ninth Circuit panel.  With Judges Pregerson and Paez, he had two votes to overturn his death sentence if any halfway plausible justification could be found.  The Supreme Court vacated and remanded for reconsideration in light of Cullen v. Pinholster.  Today the panel decided, 2-1, that their decision on IAC in the penalty phase stands despite Pinholster.  Given that dissenting Judge McKeown is closer to the Ninth's present center of gravity, this one might actually be corrected en banc.  Update:  Kim Smith has this story in the (Tucson) Arizona Daily Star.

In another case, another panel decided unanimously that former terrorism detainee Jose Padilla (subsequently convicted on other charges) can't sue former DAAG John Yoo, who gets qualified immunity.

I will not have time to review these decisions in depth today, but they are sufficiently newsworthy that I wanted to note them here.

Thomas Sowell reflects on the Trayvon Martin/George Zimmerman case in a piece in National Review Online.  It's short and worth the read, mostly for its reminder of the astonishingly dishonest editing that NBC undertook to attempt to portray Zimmerman as a racist. The edit itself is described here.

Let us talk sense, like adults. Nothing that is done to George Zimmerman -- justly or unjustly -- will unlynch a single black man who was tortured and killed in the Jim Crow South for a crime he didn't commit.

Letting hoodlums get away with hoodlumism today does not undo a single injustice of the past. It is not even a favor to the hoodlums, for many of whom this is just the first step on a path that leads to the penitentiary, and maybe to the execution chamber.

Winston Churchill said, "If the past sits in judgment on the present, the future will be lost." He wasn't talking about racial issues, but what he said applies especially where race is involved.

I have not posted about the George Zimmerman/Trayvon Martin case for one simple reason:  I don't know what happened.  It could be that Zimmerman set upon and murdered an unarmed teenage boy out of racial hate.  It could be that Martin set upon Zimmerman and the latter acted instinctively out of self-defense, as he claims.  I don't know and neither does anyone else in the general public.  Having at one time been a prosecutor, however, my general experience is that defendants do not get charged with murder for whimsical reasons.

Associated Press has posted a copy of the investigators' affidavit in the Martin/Zimmerman case here.

The affidavit says Martin "was on his way back to the townhouse where he was living when he was profiled by George Zimmerman."  It does not explain what it means by "profiled," a word that has become loaded in recent years.

The affidavit says Zimmerman continued to follow Martin after being told not to by the dispatcher and that Zimmerman confronted Martin, contrary to Zimmerman's version of being attacked from behind while walking back to his vehicle.

On the critical issue of the voice calling for help on the 911 calls, the affidavit says, "Trayvon Martin's mother has reviewed the 911 calls and identified the voice crying for help as Trayvon Martin's voice."  Well, that's disappointing.  I was hoping for something more scientific.  Both sets of parents claim it is their own son's voice.  Shouldn't the investigation have included an expert analysis?

Sari Horwitz reports in the WaPo:

Florida special prosecutor Angela Corey plans to announce as early as Wednesday afternoon that she is charging neighborhood watch volunteer George Zimmerman in the shooting of Trayvon Martin, according to a law enforcement official close to the investigation.

It was not immediately clear what charge Zimmerman will face.

Update:  Zimmerman has been arrested and charged with second-degree murder, Gary Fineout and Brendan Farrington report for AP.

A few scattered notes from the last few days on the continuing controversies in the Martin/Zimmerman case.

The special prosecutor has decided not to take the case to the grand jury.  AP story is here.  What does that mean?  Not much.  The grand jury was once considered a key protection, and for federal cases it is enshrined in the Fifth Amendment, but the institution is largely obsolete and most states have made it optional.  California's law was upheld by the US Supreme Court way back in 1884, and the grand jury indictment clause remains one of the few provisions of the Bill of Rights not "incorporated" and applied to the states.  The AP story indicates that the decision to pass on the grand jury rules out a first-degree murder charge in Florida, but this case was highly unlikely to be first-degree murder anyway.

William McGurn in the WSJ asks "What Would Atticus Do?" in light of the recent 50th anniversary of the film version of To Kill A Mockingbird and the showing of the film at the White House.  The parallels are not as obvious as some think, McGurn says.

NBC News has fired the producer who made the infamously distorting edit of the Zimmerman phone tape.  Erik Wemple at the WaPo's media blog discusses whether it was error or intentional distortion.  He notes, "Effort would be required to contrive a more injurious abridgement of the tape, at least as far as Zimmerman's interests are concerned. The prima facie outrageousness of the editing, in fact, convinced a vocal group that NBC had acted deliberately -- that it was out to tar Zimmerman."  Even so, Wemple says, "I am not pitching a tent in the 'deliberate' camp. I've seen too many errors over the years, and I know how simple carelessness can come off as a conspiracy."

The WSJ Law Blog has this interesting Q&A session on the Martin/Zimmerman case.

James Taranto weighs in here on reflexive support for Zimmerman, lynch-mob mentality, and dishonest editing.

One of our readers is highly-regarded, veteran prosecutor in a big city.  I asked how much of an impact she thought Lafler would have in practice.  Her answer:  Not much:

[Y]ou'd be surprised at how few convictions get undone under our [present] Lafler-esque "system." The fact that defendants don't come back to court in droves to claim that their attorneys were ineffective in plea bargaining is, I think, a consequence of basic free market forces. I'll try to explain.

Most defendants are guilty as hell and realize they have the proverbial snowball's chance if they go to trial. Therefore, most defendants want to mitigate their damages in the form of plea bargains rather than going to trial. (My husband's criminal defense practice is based on this premise, as he almost never goes to trial and sees his role as the damage controller, kind of like an insurance adjuster.) 

If lots of cases got challenged and thrown out later on grounds of ineffective assistance, the net result on the "market" would be that prosecutors would change their behavior accordingly by not offering very many plea bargains. Therefore, due to these market forces, the vast majority of defendants do not challenge their convictions unless 1) their attorney really was ineffective, or 2) there is some other problem they are seeking to avoid (e.g., immigration consequences or a three-strikes life sentence). It is also worth noting that in my office, our policy is to charge conservatively at the outset, and to add charges and/or enhancements or amend charges if the case is going to trial. Accordingly, barring unforeseen circumstances, the most favorable plea offer will always be the first offer. All the defense attorneys know this, which keeps our "market" relatively stable as well.