Recently in Notorious Cases Category

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

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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

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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.
This is what happens:

WASHINGTON (WUSA9) -- New, horrifying details are surfacing about what happened inside the Savopoulos mansion near Vice President Joe Biden's house before the murders.

A law enforcement source tell WUSA9's Bruce Leshan that detectives now believe the killers tortured the 10-year-old boy, Phillip Savopoulos, in the effort to get money out of his father.

Police believe the killers were in the house for about 10 hours, and that they successfully forced the Savopoulos family to get them tens of thousands of dollars. Someone may have actually had to go out and get the cash while the rest of the family and their housekeeper were held hostage.

The prime suspect in this grotesque crime is one Daron Dylan Wint.

Was Wint a stranger to the criminal justice system?  Not exactly.

Mitigating in whose opinion?

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I have downloaded the Tsarnaev jury verdict form from PACER and uploaded it here. There are several interesting things about this form, but one that I particularly want to note is the deficiency in what the jurors are asked to find about "catchall" mitigating factors.

The Supreme Court has mandated since 1978 that the defendant can proffer to the jury any aspect of his character, background, or record that he wants to argue as mitigating.  When he does, there are actually three decisions to be made.  (1) Is the factor factually true?  (2) If so, is it actually mitigating? (3) If so, how much weight should it be given?

It seems to me that there is not enough attention given to the second step.  Supposedly mitigating factor 16 on page 18, for example is, "Dzhokhar Tsarnaev's mother facilitated his brother Tamerlan's radicalization."  Ten jurors found that factually true.  How many considered it mitigating?  Did all 10 understand they could find it true and still say "So what?  That's not mitigating."

These kinds of failures to make clear to the jury the nature of what they are supposed to be deciding were held to be unconstitutional when they ran against the defendant many years ago.  But ambiguities and omissions that run in the defendant's favor apparently go uncorrected.

The jurors probably get to the right end result in any case.  In the weighing process, jurors may find that a true factor gets zero weight if it is not mitigating.  Still, I would like to see this cleaned up.
I read the WSJ every day, and today's editorial about Dzhokhar Tsarnaev's death sentence illustrates why.  It gets right to the point:


Had Boston Marathon bomber Dzhokhar Tsarnaev been sentenced to life at a federal Supermax prison, his remaining years would have been spent in a tiny concrete cell, 23 hours a day, constantly alone, with barely a sight of the sky and none of the country. As punishment for crime goes, that might have been enough.

But more than punishment was at stake in the case of Tsarnaev...The bombing was no mere criminal act carried out on an especially large scale. Tsarnaev and his brother Tamerlan...carried out an act of war aimed at the institutions and values of American civic life.

The victims were unsuspecting and defenseless, and the damage done will be felt for decades. Think of the Richard family: Bill Richard, the father, eardrums blown and wounded with shrapnel; his wife Denise, who lost an eye; daughter Jane, who lost a leg; son Henry, unwounded but traumatized; son Martin, murdered at the age of eight.

No society serious about its self-defense and preservation can tolerate this.

One of the typical moves for a defense attorney in the sentencing phase of a capital case is to call some of the defendant's family.  This has the effect both of "humanizing" the defendant, and showing the jury the suffering it will cause if it orders his execution.

Some have wondered why Judy Clarke did not call any of her client's family.  The reason is provided in spades by this Time article.  You don't have to read far to see that, as ever, Ms. Clarke knew what she was doing:

Like many observers of the case in Russia, the Tsarnaev family has claimed -- without providing any meaningful evidence -- that the bombing was part of a U.S. government conspiracy intended to test the American public's reaction to a terrorist threat and the imposition of martial law in a U.S. city. "This was all fabricated by the American special services," Said-Hussein Tsarnaev, the convicted bomber's uncle, tells TIME.

No wonder little Dzhokhar is such a piece of work.

Mr. Tsarnaev, Tear Down These Appeals

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One of the arguments against the death penalty for the Boston Marathon bomber was that it would result in years of appeals and collateral review, renewing the anguish of survivors and the families of the dead.

Of course there is an obvious way to avert this problem:  Tsarnaev could waive further review and accept what he earned.

I note that the adverse coverage of the sentence, for example, here and here, never so much as mentions this possibility.  The abolitionist assumption is what it always is: The problem is not the killer.  The problem is us.  He's not the sadist. We are.  Years of review are needed to advance the admittedly tiny hope that our racist, brutish, wahoo, etc., country will come to its senses.

As Kent has noted, it is anything but a foregone conclusion that review will take its usual length.  This is the feds.  McVeigh was executed less than four years after he was sentenced.

And then there's the fact that no one has cited a ghost of a plausible reason to believe the results of the trial or sentencing will be overturned.

Ronald Reagan famously said, "Mr. Gorbachev, tear down this wall."  Perhaps, in the unlikely event those upset with the prospect of further victim suffering are sincere, they will join me in saying, "Mr. Tsarnaev, tear down these appeals."

For once in his young life, perhaps Tsarnaev could show an ounce of decency. 
The Boston Herald reports:

U.S. Attorney Loretta Lynch said today in a statement that "Tsarnaev coldly and callously perpetrated a terrorist attack" in Boston.

"We know all too well that no verdict can heal the souls of those who lost loved ones, nor the minds and bodies of those who suffered life-changing injuries from this cowardly attack," Lynch said. "But the ultimate penalty is a fitting punishment for this horrific crime and we hope that the completion of this prosecution will bring some measure of closure to the victims and their families.  We thank the jurors for their service, the people of Boston for their vigilance, resilience and support and the law enforcement community in Boston and throughout the country for their important work."

I also thought this item in the Herald's story was noteworthy:

Only three of the 12 jurors bought into the defense argument that Tsarnaev was influenced by his older brother Tamerlan. The jurors unanimously agreed that Tsarnaev showed no remorse and they unanimously voted to put him to death.

I said at the time that it would backfire to try what Kent aptly called "remorse-by-proxy."  

Just so.

No Remorse, No Escape

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Once the prosecution pulled back the curtain on the hideousness of the Boston Marathon bombing, I thought Tsarnaev was probably headed for a death sentence. I wrote three weeks ago that his best chance to avoid it lay in taking a big risk  -- get on the stand and say you're sorry:

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

The defense apparently decided against it; one way or the other, Tsarnaev sat in silence the entire trial, looking (I glean from press reports) mostly indifferent. The best it could do was call a transparent abolitionist zealot, Sister Helen Prejean, to testify that Tsarnaev was, so she claimed, remorseful.

She was effectively impeached on cross-examination, making today's sentence less than a surprise.  There's not much to be happy about in this horrible case, but one thing at least to be satisfied about is that the jury wasn't taken in by the Sister Prejean Show.

Tsarnaev Sentenced to Death

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Justice has prevailed.  Congratulations to an exceptionally talented prosecution team.  More later.

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